HKSAR v. CHAU HON KWONG

CACC 86/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2010

(ON APPEAL FROM HCCC NO. HCCC 254 of 2009)

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REASONS FOR JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1.  The applicant sought leave to appeal his unanimous conviction by a jury before Line J of a single charge of trafficking in 372.50 grammes of heroin hydrochloride contrary to s. 4 of the Dangerous Drugs Ordinance, Cap 134, as well as the subsequent sentence of 17 years imprisonment.

2.  At the conclusion of the hearing we dismissed the application for leave to appeal conviction. We granted leave to appeal sentence, treated the hearing as the appeal proper, allowed the appeal and substituted a sentence of 16 years. We indicated we would give our reasons later. This we now do.

APPEAL AGAINST CONVICTION

The grounds of appeal

3.  It was necessary to identify just what it was in the conduct of the trial that gave rise to this application, for the primary ground of appeal did not accurately reflect the events which occurred. The two specific grounds of appeal, in addition to the usual catchall of the conviction being unsafe and unsatisfactory, were:

That the learned judge erred in deciding that the applicant, when he gave evidence in the course of this trial, had put his character in issue (by inferring that he was of good character when he was not), and this error was compounded when the judge then prevailed upon senior counsel for the applicant to make a further admission under s. 65C of the Criminal Procedure Ordinance, in such terms as could have left the jury with the impression that the applicant had a previous conviction or previous convictions, thus depriving the applicant of a fair trial.

That the learned trial judge erred when he directed the jury in the following terms: "[I]f you think the defendant might be telling the truth, that means you must necessarily have a doubt about the truth of the prosecution evidence in the case: again, in those circumstances it is your duty to return a verdict of not guilty" because this direction suggested that the defence, in the trial, had challenged the prosecution case, when in fact, the prosecution evidence was not challenged, and for the most part, was the subject of admissions under s. 65C of the Criminal Procedure Ordinance.

Events at trial

4.  The applicant elected to testify on his own behalf. On the morning of 24 February 2010 when he was being examined in chief by leading counsel, Mr. Clive Grossman SC, the following exchanges occurred:

Q.   Now, what I wanted to ask you a little about is this. What is your occupation? At the time you were arrested, what were you doing? What work did you do?

A.   I'm a businessman, and at that time I worked in a real estate company.

Q.   Doing what?

A.   The major work was to develop real estate and to collect rentals. But I also got another proper job by the name... and the company was under my name. It was also a real property development company. And each year, I draw $500,000 as my wages. And I also got other sources of income, like a bonus and dividend of certain shares. And I got two cheques in the year of 2009. This is my entitled dividend of the shares....

...

Q.   Well, in short, are you, the point you're making, that you were financially secure and you didn't need to involve yourself with drugs?

A.   Right

Court.  Just to make my life easy, just tell me a round figure for your annual income.

A.  As I said before, my annual income was 500,000.

Q.   That was by way of wages. I think what his Lordship was asking you, bearing in mind all the other incomes that you had from shares, etc, approximately, say in the year before you were arrested, what is your income?

...

A.   $8 million

...

Q.   Now, I want to ask you a bit about your lifestyle. During the day, may I take it you were at work with your companies?

A.   Yes.

5.  That afternoon the prosecutor and Mr. Grossman made their closing speeches to the jury. The judge indicated that he would address the jury the following day. After the jury had departed Mr. Grossman raised with the judge an aspect of the judge's forthcoming summing up in respect of which the judge had provided counsel with a draft. When that issue had been dealt with the judge asked the prosecutor, Mr. Whitehouse of counsel, whether he had a copy of the applicant's antecedent statement. That was given to the judge who then queried the whereabouts of the record of the applicant’s criminal convictions. That was then made available to the judge. The following exchange between the judge and counsel occurred:

Court.   You've seen these antecedents, have you, Mr. Whitehouse, and previous convictions?

Mr. Whitehouse. The criminal record or the antecedents, my Lord?

Court.   The criminal record.

Mr. Whitehouse. Yes I have, my Lord. Yes.

Court.   You let him walk out of that witness box in front of this jury giving the impression that he was a businessman working in legitimate business, didn't you?

Mr. Whitehouse. My Lord, we have discussed that, and I am aware of it. I didn't think it would be right - I didn't think he had gone far enough, my Lord. I certainly didn't think it would be in the interests of a fair trial to cross-examine him on his character.

Court.   I'm not suggesting you put that in, but the impression that the jury carried away with them is significantly different, because he couldn't have been acting as a legitimate businessman until when...

Mr. Grossman.    He came out, I think, in December - I might be wrong - I think December 2008 and then my instructions are that's exactly what he was doing.

Court.   You didn't think to say "You've been a businessman for four months" or the like.

Mr. Whitehouse. Yes. I didn't think that was consistent with the caretaker’s evidence that he turned up at...

Court.   What? The man had been in prison, hadn't he?

[Emphasis supplied]

6.  The following morning, in the absence of the jury, the judge pursued the matter with Mr. Grossman during a fairly lengthy exchange, in which the following passages were relevant to this appeal:

Court.   Mr. Grossman, yesterday your client gave evidence, and, in my view, he put his character in issue. He painted a picture of working for his own company. He said he had a proper job and that his income each year that he drew was $500,000.

    That is a picture that is shown to be inaccurate by reference to the antecedents and list of previous convictions which I have, because they show that for at least the three years preceding 23 December 2008, he was in prison, and in prison for drug trafficking.

    Now, how has that situation arisen? How is it to be dealt with because there is one thing I think at the moment: that this jury should not go and make its decision when it has been misled about something that is so obviously wrong.

Mr. Grossman. My Lord, when the defendant gave evidence, what he said was basically accurate. What he said was accurate as far as I'm aware.

Court. It was not accurate. I have listened to it with great care and it cannot sit with the record of his convictions and antecedents

...

Court...   if you knew that was the true picture and you let him paint it like that in front of the jury, Mr. Grossman, then it seems to me that you were helping him paint that inaccurate picture.

Mr. Grossman.   Well, my Lord, I'm sorry if you take that view of me, and with the greatest respect, it is not correct.

Court.   Well, did you know that - well you must have known he was in prison at the time.

Mr. Grossman.   Of course. Of course.

...

Mr. Grossman.   May I know what you propose to do?

Court.   Well, certainly for a start I’d have thought at least something along the lines of an admission that the defendant was not attending a proper job and earning wages for the three years preceding 23 December 2008, because that's the fact.

Mr. Grossman.   The issue, my Lord, was what he was doing at the time when he was arrested.

Court.   The issue is that that jury will think this is a man who has been going to and from work in a business his father founded, earning each year - these are his words - each year earning $500,000, right: going to work, doing a proper job. It is not the case, and I'm not going to let it go forward; and that sentence, it seems to me, is a very generous way to your side to put right the wrong that has occurred.

...

Mr. Grossman.   What admission would you like me to make?

Court.   The defendant was not attending a proper job and earning wages for the three years preceding 23 December 2008.

Mr. Grossman.   I will make that admission, my Lord, as long as it is - I don't want them, because they are not entitled to know - they're not entitled to know that he was imprisoned.

Court.   Well, in fact, in my view, they are entitled to know that, because you've put your character in and it would be quite open to the prosecution to call evidence in rebuttal about your character. You needn't fear that I want to take a course that will put the fact that he was imprisoned for drug trafficking in front of them... for the moment, Mr. Grossman, you are willing to make that admission are you?

Mr. Grossman.   Yes, I'll make that admission.

[Emphasis supplied]

7.  The prosecutor then suggested that there should be a trial de novo. The judge read to counsel the passage that he intended to include in his summing up to cover the issue which had arisen. The prosecutor indicated that he had no objection to that passage whilst Mr. Grossman expressed the view that it was the "... best [he] could hope for" if the judge had taken the expressed view. There were further exchanges about the possibility of a new trial during which the judge accepted that Mr. Grossman had not made any mention during the course of his closing speech of the applicant's employment or the fact that it supposedly provided him with an income sufficient to remove any necessity for him to involve himself dangerous drugs. Then the following:

Court.   You're happy with the proposal?

Mr. Whitehouse. Yes my Lord.

Court.   All right. So you're both prepared to make that admission.

Mr. Grossman.    Yes, I am.

Mr. Whitehouse. Yes.

Court.   All right.

Mr. Grossman.    I don't need to take instructions.

8.  The jury returned to court and was told:

Court.   Members of the jury, sorry to keep you waiting. We've just been dealing with a matter, and Mr. Grossman is just going to say something to you.

Mr. Grossman.    Yes. Thank you. Members of the jury, his Lordship has permitted me to make one clarification on what you heard yesterday, and that is this.

The defendant was not attending a proper job or earning wages for the three years preceding 23 December 2008. Thank you.

Ground 1

9.  There were two aspects to this ground: first, whether the judge had "decided" that the applicant had put character in issue; secondly, whether the terms of the admission made by the applicant could have left the jury with the impression that he had a previous conviction or previous convictions.

10.  It was clear from the two italicised passages which we have quoted that the judge took the view that the applicant had testified in such a manner as to constitute having given evidence of his good character in that he had testified, first, that “... each year, I draw $500,000 as my wages. And I also got other sources of income, like a bonus and dividend of certain shares.” when, in truth, he had been in jail for at least three years in the recent past and thus not in employment and, secondly, that the point that he had sought to make was that he was financially secure and had no necessity to involve himself with dangerous drugs. There was the further aspect that he had agreed with Mr Grossman that during the day he had been “...at work with his companies...” which, during his period of  imprisonment, was plainly misleading.

11.  The significance of this was to be found, submitted Mr Reading SC for the applicant, in the provisions of s. 54(1) of the Criminal Procedure Ordinance, Cap.  221, especially subsection (f). We reproduce the relevant passages:

Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings:

Provided as follows -

...
(e) a person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;

(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of all been charged with any offence other than that where with he is being charged, or ease of bad character, unless

 (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged in the same proceedings;

12.  It follows that if the judge were correct in the view he expressed it would have been open to the prosecutor to apply for leave to reopen his cross-examination of the applicant and cross-examine the applicant on his employment and financial ability. It is well established that whether a court will allow such a course to be followed is to be determined in the discretion of the judge. Although this section does not itself stipulate that it is necessary to obtain the leave of the court before cross-examining on previous convictions, that is the practice which prevails.

13.  In this case that was neither the course that the prosecutor sought to persuade the judge to follow nor the course that the judge took. The judge specifically indicated in the underlined passage which we have quoted that he was not considering such a course. Thus, whether the judge, as the first ground of appeal asserted, actually had decided that it would be open to the prosecution to cross-examine the applicant and whether the judge would have been correct in arriving at such a decision was not an issue which, in our view, it was necessary for us to decide for the purposes of this appeal.

14.  It was self-evident from the exchanges that what exercised the judge was the false impression which had been created by the lengthy answer regarding his financial affairs which the applicant gave to the straightforward question by Mr. Grossman which related to the nature of the work in which the applicant was engaged at the time of his arrest. This was compounded by the subsequent two leading questions by Mr. Grossman concerning the purpose of that evidence and whether he had been at work in his company during the daytime. There could not be any doubt that such an impression would have been created by the applicant’s testimony and his answer to those leading questions and that that impression would have been false.

15.  The judge correctly identified it as his duty to dispel a factual misapprehension which he perceived as potentially being important to the jury's decision. It is often overlooked that fairness is a two-way street: it is the duty of a judge to ensure fairness not only to a party on trial before him, but also to the prosecution.

16.  We were conscious of the words of Diplock LJ in Michael Sargvon (1967) 51 Crim. App. R. 394 when considering the discretion to be exercised by a judge in permitting cross-examination where that appellant had put his character in issue by seeking to create the impression of being honest and upright:

It is not, of course, for this court to substitute its discretion of that of the Deputy Chairman unless it is satisfied he went wrong in principle. For my part, so far from being satisfied that he was wrong in principle, it seems to me that it was necessary for a fair trial, by which I mean trial which was fair to the prosecution as well as the defence, that the jury should know these two defendants, who were suggesting that the two small boys were thieves whom they had caught red-handed, were themselves at any rate two and nine days before, so far from being honest citizens anxious to prevent crime, convicted of crimes themselves.

17.  It would have been open to the judge, of course, to have invited submissions and then to have made a ruling as to whether the applicant had brought himself within the provisions of s. 54(1)(f) and, consequently, to decide whether he should exercise his discretion in favour of allowing cross-examination. Plainly, had that course been followed the adverse impact on the case of the applicant may have been considerable, albeit not unfairly so.

18.  We were concerned to note that the prosecutor had first categorised the judge’s proposed course as “unsatisfactory” which he then amended to “unusual”. This is particularly so given that the situation was unlikely to have arisen if, as he should have done, he had provided the antecedent statement and criminal record of the applicant to the judge at the outset of the trial, or taken issue with the line of questioning pursued by Mr Grossman. In our view, the judge’s solution was pragmatic, sensible and resulted in fairness for both the prosecution and the applicant.

19.  We noted that in England there now exists specific legislative provision which deals with the creation of a false impression as to good character by an accused and provides for leave to be granted to the prosecution to cross-examine in order to dispel that false impression: see ss. 101(1)(f) and 105(1) of the Criminal Justice Act 2003.

20.  In R v Render [2006] 1 WLR2948, which related to an offence involving violence, the judge allowed cross-examination in regard to a previous charge of assault which had been disposed of by way of an absolute discharge after the appellant had been found unfit to plead, the fact of the assault having been established before the jury. At §23 the court, in upholding the decision of the judge, observed:

The judge was very concerned that the jury should not labour under a false impression about the appellant. He rejected a submission that the Crown should not be allowed to adduce the facts of the assault because proper notice had not been given.... The judge ruled that the Crown could ask about the facts of the assault which were relevant to the issue of credibility.

21.  As to the second aspect of this first ground of appeal, we saw no realistic basis upon which it could be suggested that the terms of the admission could have left the jury with the impression suggested by the applicant.

22.  It was to be remembered that Mr. Grossman introduced that admission by indicating to the jury that the judge had permitted him to make a clarification of one point which had arisen during the applicant’s evidence the previous day. That introduction was, it seemed to us, deliberately tailored to make it look as if the admission had emanated from the applicant himself. We also noted that, given the terms of the proposed admission, Mr. Grossman did not even regard it as necessary to take instructions from the applicant as to whether it should or should not be made.

23.  The terms of the admission to which Mr. Grossman apparently had no difficulty in agreeing were bland to the point of being innocuous and were confined to a single, simple statement of fact. They met the circumstances of the case and did no more than address the issue in the most favourable way possible to the applicant.

24.  Assuming that the jury even regarded this aspect of evidence as being of sufficient importance to consider it specifically, the submission that it would arrive at a decision that "the obvious answer would be" that the applicant had not been earning an income during the previous three years "because he was serving a prison sentence" was fanciful.

25.  There was no merit at all in this ground of appeal.

Ground 2

26.  In the course of his oral submissions to us, Mr Reading realistically accepted that this ground could not have stood alone if  Ground 1 failed and relied upon his written submissions. It was fallacious to say that the defence had not challenged the prosecution's case. Whilst much of the prosecution evidence was not in dispute, the core of its case was that it was the applicant who was the person in possession of the drugs and other items found in his own home. It was the core of the applicant's case that he was not, that they were there without his knowledge or consent as the property of a third party upon whose identity he could only speculate. The only effect of the direction about which complaint was made was simply to remind the jury that the applicant would have to be acquitted if they thought that he might be telling the truth. This ground of appeal was also devoid of merit.

APPEAL AGAINST SENTENCE

27.  The judge correctly identified that the quantity of heroin involved, 372.5 g, came close to the top of the bracket delineated in R v LAU Tak-ming & Ano [1990] 2 HKLR 370 which indicates that trafficking in between 200 and 400 grammes should attract a starting point after trial of between 12 and 15 years imprisonment.

28.  The judge noted that the applicant was not simply a courier but that he had the drugs together with equipment in his home, which he described as "a relatively expensive flat", to enable the drugs to be cut with agents which were also found there, thereby increasing the quantities that were available for sale. For this fact, the judge determined that, absent one other significant feature, the applicant’s previous convictions, the appropriate starting point would be at the top of the bracket, namely 15 years imprisonment.

29.  The judge then went on to say that the applicant’s previous conviction:

... is not to be ignored because it was only in December prior to the April when you committed this crime that you had been released from a sentence of 4½ years imprisonment. That was a case involving both heroin and ice.

Your conduct in going straight back to trafficking in dangerous drugs in large quantities shows a complete disregard for the court, its sentence and the period of imprisonment that was imposed upon you.

Even though we strive for consistency in sentencing drug cases, you cannot be dealt with fairly in the same way as a man who had not behaved in that contumelious way.

Accordingly, I shall enhance the sentence beyond the 15 starting point that I otherwise would have taken. I shall enhance it by two years.

30.  The submission initially was twofold. First, that because the quantity of narcotic fell within a stipulated band, the court was bound by the upper limit of that band irrespective of any aggravating features. It was suggested that because the phrase "within the suggested bands" appears at the commencement of a paragraph which identifies some matters of aggravation, an offender may not be sentenced "... outside the tariff band for the quantity of drugs involved."  This aspect was not pursued before us, Mr Reading recognizing that it failed to reflect express decisions of this court, differently constituted, in HKSAR v YUEN Wing-chuen [2006] 3 HKLRD 220 that aggravating factors may cause the limit of a particular band to be exceeded followed in HKSAR v LUK Chun-man [2006] 3 HKLRD 450.

31.  Secondly, enhancing the sentence by a period of two years simply because the applicant had one previous similar conviction was submitted to be wrong in principle as the effect of previous authority was that there must be an element of persistence in previous offending of the same or a similar nature. Reliance was placed on dicta appearing in Lau Tak-ming as well as HKSAR v Chan Pui-chi [1999] 2 HKLRD 830.

32.  The applicant has an extensive criminal record covering, in chronological order since 1975, operating a gambling establishment, wounding; theft; robbery; loitering; possession of dangerous drugs in 2004 for which he was sentenced to 18 months imprisonment in the High Court after being acquitted of the initial charge of trafficking; and trafficking in dangerous drugs in 2008 for which he was sentenced to 4 years and 6 months imprisonment on a retrial.

33.  We do not accept that where a judge relies upon previous offending as an aggravating feature, such a course necessarily would require more than a single previous instance of similar offending.  This was recognised in, for example, HKSAR v Chan Pui-chi at 833I where Stuart-Moore V-P said:

Extending this principle to another more common example, in theft by shoplifting the courts will often impose a very moderate financial penalty for a first offender, but if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

and again in HKSAR v Abdallah Anwar Abbas [2009] HKC 197 at §32:

There are a number of factors that must go aggravation of [the offence of trafficking in dangerous drugs] including... the fact that the trafficker has engaged in trafficking on a previous occasion.

and at §35:

In this regard, it is necessary to address the extent to which aggravating circumstances should lead to enhanced sentences in order to reflect the general policy of the courts to impose greater sentences on those... who have trafficked in dangerous drugs on a previous occasion...

34.  What the submission ignored was that the basis upon which the judge enhanced the applicant’s sentence was not persistent offending - although the fact that his two most recent offences, both of them relating to dangerous drugs and for which he had been sentenced, in the preceding six years, to six years imprisonment in aggregate, was a factor to which he was entitled to have regard. To have ignored these facts would have been to deny reality.

35.  The express reason which the judge gave for enhancing the sentence was the proximity of the commission of this, third, drugs offence to the release of the applicant from a substantial period of imprisonment for an identical offence. It demonstrated the lack of impact which two periods of imprisonment for similar conduct in fact had on the applicant. It demonstrated remorselessness on the part of the applicant. It demonstrated the lack of deterrent effect which periods of imprisonment have on the applicant.

36.  In our view, the judge was correct, as a matter of principle, in taking the view that he did.

37.  The question that remained was whether, by enhancing the sentence by two years, the sentence of 17 years imprisonment was manifestly excessive. In our judgment the appropriate enhancement would have been one year, resulting in a sentence of 16 years imprisonment.