HKSAR v. ANTI AMPOFO MOSEN

CAC C 349/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 349 OF 2009

(ON APPEAL FROM HCCC NO. 81 OF 2009)

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Hon Stock VP (giving the reasons of the Court):

Introduction

1.  On 29 September 2009, the applicant was convicted after trial before Deputy Judge Geiser and a jury of two counts of trafficking in a dangerous drug and sentenced to a total of 11 years’ imprisonment.  He subsequently sought leave to appeal against conviction and sentence.

2.  On 9 November 2010, we granted him leave to appeal against conviction, treated the hearing of the application as the appeal, allowed the appeal and quashed both convictions.  We said we would give reasons later and this we now do.

The prosecution case

3.  The prosecution case was that shortly before 9 pm on 4 October 2008, the applicant was seen by police emerging from a building in Chatham Road North, Kowloon.  He was with a female.  He was eventually approached in Baker Street by the police who showed him a warrant card but he ran away, slipped, fell and was apprehended.  Keys were found upon him, as well as cash in the sum of $21,200, and four telephones and, inside two pairs of underpants which he was wearing, were discovered two resealable plastic bags, one containing a white substance in lump form and the other powder.  These substances were later examined and found to constitute 59.9 grammes of a solid containing 35.78 grammes of cocaine.  This was the subject of the first count on the indictment which charged him with trafficking in that quantity of cocaine.

4.  The applicant was arrested and he and the female were then taken to a flat on the second floor of the building from which he had emerged.

5.  A search was conducted in the flat and on an ironing board there was a black bag, inside which were several resealable plastic bags each of which contained white substance in powder form.  This transpired also to be cocaine and formed the subject of the second count on the indictment which alleged trafficking in a dangerous drug, namely 213.96 grammes of a solid containing 127.37 grammes of cocaine.

6.  Also found in the flat were electronic scales, a pile of resealable plastic bags, $50,000 in a jacket pocket, said to belong to the female, plus $8,000 in a wardrobe.  Various documents were found in the apartment belonging to the applicant.

The defence case

7.  The applicant testified at trial and his case was that he was engaged in trading in second-hand cars, mobile telephones and home accessories.  He said that on 2 October 2008, he purchased 20 mobile telephones and 20 mobile telephone batteries from a person called Anderson Draco.  He had seen the batteries in the black bag but, having paid for them, he had some shopping to do, to purchase home accessories and laptops, and left the black bag with Draco and collected it after his shopping trip.  He then went home and went to bed.

8.  The following day, according to this account, namely, on 3 October 2008, he opened the black bag and discovered what appeared to him to be a strange substance in square form inside the black bag.  He tried to contact Draco but without success.  The next day, that is, 4 October, he became suspicious that the substance might be dangerous drugs and decided to take the substance or rather a sample of it – the quantity found on him by the police in Baker Street – to a chemist for analysis.  Gloria, the female who was with him upon his arrest, came with him because she was unwell and wanted to go to the chemist too.

9.  He said that he had placed the two packets in his right trouser pocket, not in his underpants.  He admitted that he had been wearing two pairs of underpants, saying that this was to provide comfort, otherwise his thighs rubbed together.

10.  He admitted that he had run away when first accosted by the police.  This, he said, was because he did not realise that they were police and thought he was about to be the object of a racially motivated attack.

11.  In short, his defence was that he did not know that the substance which he was carrying in his pocket or the substance found in his flat were dangerous drugs.  As for the digital scales and the pile of resealable plastic bags, he said that these were originally in the black bag which was supposed to contain batteries.

Liberato

12.  The first ground of appeal is that the judge failed to give the jury what has become known as a Liberato direction, after the decision in R v Liberato (1985) 159 CLR 507, which is to the effect that even if they did not positively believe the evidence of the defendant, they could not find an issue against him contrary to that evidence if that evidence gave rise to a reasonable doubt on that issue.  The complaint is that the judge did not bring home to the jury either at all or with sufficient clarity the point that if they found that the applicant’s version may be the truth, they were duty bound to acquit.

13.  The cases cited in support of the applicant’s arguments illustrate the point at the heart of the argument, although they are cases which, as we shall shortly see, can be distinguished on the footing that the misdirections or non-misdirections in those cases were somewhat more stark or obvious than in the present case.

14.  In Liberato itself, it was said by Brennan J, at p. 515, that :

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

15.  In Sze Kwan Lung and others v HKSAR (2004) 7 HKCFAR 475, the judge told the jury to reach its verdict based on such evidence as was established to be true, an analytical method to be adopted equally to defence evidence as to the evidence adduced by the prosecutor.  Much the same formula was used in HKSAR v Wong Wai Man and others (No. 2) [2003] 4 HKC 517.  This was held to be a fatal misdirection precisely because it suggests that unless defence evidence is found positively to be true, that evidence can be of no further avail in the path towards a verdict; whereas the correct position is that it might avail a defendant if, though not positively believed, it nonetheless raises a reasonable doubt.  

16.  The same point arose in Law Chung Ki and another v HKSAR (2005) 8 HKCFAR 701 where the judge said that the jury was required to judge the evidence of the defendants by precisely the same for standards as they apply to other evidence in the case and that: “when you have decided what evidence you are sure it is proven, it is for you to decide what conclusions to draw from that evidence.”  That was, of course, a misdirection for it excluded from the jury’s analytical approach to its verdict defence evidence which whilst not proven beyond reasonable doubt, might have been sufficient to raise a doubt.  In their judgment the Court said, at p. 710, that so long as the Liberato message was conveyed, the form of words was not important, and that:

“Depending on the circumstances and the summing-up as a whole, it may be possible for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof provided that nothing said in the summing-up runs counter to that message.”

17.  In Jim Fai v HKSAR (2006) 9 HKCFAR 85, the trial judge told the jury that if they did not believe the testimony of the defendant they should disregard it “and concentrate on the part, where you accept as truthful, and that includes evidence from the defendant which you regard as truthful.”  So the jury was led to believe that it could only act on the testimony of the defendant if they found it to be true.  The Court said, at para 16:

“… there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict. It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict upon it. On the other hand, when it comes to defence evidence, even if the jury totally reject it, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury had to acquit him. … it is therefore essential, in order to be fair to the accused, that the jury should be properly directed on this aspect in clear and simple terms.”

The summing-up

18.  It is against that background that the summing-up in the present case fell for consideration.

19.  At an early stage of the summing-up, the judge invited the jury to the very proposition which Brennan J in Liberato said was a commonplace one in a summing-up but which led to a particular need to ensure that the decision of the jury was not based on a mere preference for one version over another.  The judge in this case told the jury that:

“… the simple issue … that you have to decide is the question of knowledge on the part of the defendant. Did the defendant know that what he had on his person and inside his premises were indeed dangerous drugs? The case is as simple as that. You may think that the case depends entirely on the question of the credibility of the police officers on the one hand and the defendant and his witness on the other.” (emphasis added)

20.  The judge then gave to the jury the normal directions as to the burden and standard of proof and repeated on several occasions that there was no obligation upon the applicant to prove his innocence.  They were told that even if they did not believe what the defendant and his witness (the female Gloria), nonetheless that would not relieve the prosecution of its burden of “satisfying you by evidence… so that you are sure that the defendant is guilty of the charges that he faces.”

21.  In relation to the issue about the location of the drugs when the applicant was arrested, the judge said:

“... if you believe that they were discovered inside the inner pair of underpants that he was wearing, then you may find that you will have little difficulty in drawing the only reasonable inference that the two packets were hidden there as the defendant knew perfectly well that the two packets contained dangerous drugs.

If, however, you do not believe the evidence of [the police officer] in this regard, but accept, as the defendant has said, that he had them in his right trouser pocket and was on his way to the chemist to find out what the substance was, then you may not draw the inference.” (emphasis added)

22.  The flaw in that passage is immediately apparent, inviting the jury, as it does, to treat competing prosecution and defence evidence in the same way and, by clear implication, to act on defence evidence in the defendant’s favour only if what he has said is accepted as in fact true, rather than acting in his favour if what he has said is in fact true or may be true.

23.  The correct formula followed shortly thereafter but only in relation to a limited issue, namely, when the judge directed the jury in relation to the applicant’s explanation of why he ran away from the police when first accosted by them, saying in this regard:

“If you think the explanation of the defendant in this regard is, or maybe, true, then you should take no notice of the fact that the defendant chose to run away. It is only if you are sure that the defendant did not run away for an innocent reason that his actions in running away can be regarded as evidence which supports the prosecution’s case.” (emphasis added)

24.  The judge went on to direct the jury that if they were satisfied beyond reasonable doubt that the applicant knew that what he had in his possession in the street and in his apartment were dangerous drugs, they had then to consider whether the prosecution had proved that he possessed the drugs for the purpose of unlawful trafficking.  It was in that regard that the judge said:

“If, after taking all these things [numerous plastic packets and electronic scales] into account, you are satisfied beyond reasonable doubt that you can infer that the defendant must have possessed the drugs which are the subject matter of both counts for the purposes of unlawful trafficking, and there is no other realistic conclusion to be drawn from the evidence, then you must draw the inference and find the defendant guilty of trafficking on both counts.

If you are uncertain about this in any way with regard to either or both counts, then you must give the defendant the benefit of the doubt and acquit him of either or both counts accordingly.”

25.  Towards the end of the summing-up the judge said, in relation to the whole case, that:

“If, after considering all the evidence and my directions on the law, you come to the conclusion that the prosecution has failed to prove to your satisfaction beyond a reasonable doubt that the defendant did traffic in dangerous drugs as alleged in the two counts, or either of them, it is your duty to give the defendant the benefit of the doubt and to find him not guilty of the offence, or offences, as the case may be.”

26.  At the close of the judge’s summing-up, counsel for the applicant then addressed the judge in relation to his directions on the very issue which arises in this application and there was then an exchange between Bench and Bar in the presence of the jury.  We need to set out the exchange in full :

“Mr Ross: My Lord – I’m sorry, my Lord. I took some notes while you were giving directions and I may be wrong but I’m not sure that there was any direction given to the jury that if the members of the jury are not sure that the defendant knew he was in possession of a dangerous drug, then he should be acquitted.

Court: If I didn’t say that, you are absolutely right, Mr Ross, thank you very much to bring that to my attention. But I thought I'd covered that.

Mr Ross: I think you did generally in respect of trafficking, but I didn't have a note that you dealt with it specifically, with knowing the nature of the drug that he had with him.

Court: Let me just check that. I’m sorry, I did - - what I said to the jury was this: jury may not convict the defendant unless they are sure the prosecution have proved that, in relation to each count, that (i) the defendant possessed the drug, (ii) that he knew they were dangerous drugs, and (iii) that he possessed them for unlawful trafficking. The prosecution must prove each of those matters on both counts so that they are sure.

Mr Ross: Right, yes.

Court: Members of the jury, just to make this crystal clear. I thought I had made it clear to you, I thought it was fairly obvious. But in the event that you find the defendant did not know or may not have known what was contained either on him at the scene, or back in his apartment, if you find that he did not know that they were dangerous drugs, you must acquit him.

Mr Ross: My Lord, it's more than that. If they're not sure.

Court: It goes a little bit further. Even if you find that he was unsure as to whether or not they were drugs.

Mr Ross: No, the members of the jury are not sure.

Court: Sorry. You’re getting me slightly confused here.

Mr Ross: If the members of the jury are not sure that the defendant knew he was in possession of the dangerous drugs, then they should acquit.

Court: Well, I believe I said that.

If you are not sure, if you are unsure that the defendant knew that what was in his possession and /or what was in his flat were dangerous drugs, if you are unsure that he knew that they were dangerous drugs, then you must acquit.

Is that good enough?

Mr Ross: That’s all right, yes, my Lord.” (Emphasis and underlining added)

Analysis

27.  This is an exchange which should not have taken place in front of the jury.  It is fundamental that counsel ought, before launching into his submissions, to have informed the judge that there was a matter of law in respect of which he wished to address the court; and that the jury should have been asked to retire; the judge would then have been in a position to give considered and precise directions, if he saw fit, to the jury upon its return.  The result was, with respect, somewhat messy.  The result of what transpired cannot have been as clear to the jury as it should have been. We comment further, in passing, that counsel’s suggestion that the jury had to be sure that the applicant knew the nature of the drug – which the jury would have understood as meaning the type of drug – he had with him was wholly incorrect.

28.  The case may be distinguished from the others which have been cited in that there was in the present case no direction by the judge in terms that the jury was restricted to act only upon such evidence as they found to be true, the prosecution evidence as well as the defence evidence. But that does not conclude the matter.  The question is whether there was a real danger that this summing-up, looked at as a whole, may have conveyed that message.  We were of the view that there was such a danger.

29.  If a jury are presented, as they were in this case, with two competing and wholly conflicting accounts and told, as they were in this case, that “the case depends entirely on the question of the credibility of the police officers on the one hand and the defendant and his witness on the other,” the message must clearly be conveyed that a finding of guilt does not depend upon the mere preference of one case against the other and that even if the jury does not positively believe the defendant’s evidence, nonetheless that evidence is still operative as an analytical factor if the jury concludes that it might be true.

30.  What happened in this case is that the judge told the jury that the case was one of credibility as between the prosecution and defence witnesses, what to do if they rejected entirely what he said, what to do if they accepted what he said, and what to do if they found that “he did not know that they were dangerous drugs” but not – save at the end but, significantly, then followed by a contra-indication – what to do if they did not positively believe him but thought his account or material parts of it might be true.  In the circumstances, we concluded that there was a danger that the jury was left with the impression that once they did not positively believe the applicant’s evidence, his evidence was to be put to one side.  The exchange between counsel and the judge at the end of the proceedings would have tended, in our judgment, to have confused rather than clarified.

31.  Ms Chan for the respondent, accepted that it would have been better had the judge provided a single and succinct direction as to the correct use of defence evidence.  However, she argued that the failure to do so was cured by a combination of two passages in the summing-up: first, the passage in which the judge said that, “even if you were to decide that you do not believe what the defendant and his witness told you, that will not relieve the prosecution of its burden of satisfying you by evidence … so that you are sure that the defendant is guilty on charges he faces”; and, secondly, the last comment made to the jury after the exchange between counsel and the Bench where the judge said that if the jury was not sure that the defendant knew that there were dangerous drugs then they must acquit.

32.  We did not think that this cured the omission.  The effect of those two passages was to tell the jury that they could only convict if they were sure of guilt but the whole point of the Liberato direction is to guide the jury as to the permissible and impermissible routes by which to decide whether or not they are sure.  Telling them again and again that they can only convict if they are sure of guilt, does nothing to cure intimations, as we had in this case – twice – that it was open to them to act in the applicant’s favour if they accepted as true what he said, without telling them that they were also bound to acquit if what he said might be true.

33.  It was for these reasons that we allowed the appeal.  An application was made for a retrial of the applicant upon the same indictment, which was unopposed, and we made an order accordingly.