HKSAR v. CHU KAR KEET

CACC 284/2019

[2022] HKCA 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 284 OF 2019

(ON APPEAL FROM HCCC NO 319 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 11 September 2019, the appellant was convicted after trial before Deputy Judge Woodcock (the Judge)and a jury by a majority verdict of 6 to 1 of a single count of trafficking together with Tang Wai-keung (Tang)in a dangerous drug, namely, 4,318.59 grammes of a solid and a powder containing 3,146.03 grammes of cocaine.  Earlier in the proceedings, Tang pleaded guilty to the offence and took no further part in the case.  On 12 September 2019, the appellant was sentenced to 25 years’ imprisonment. 

2.  On 24 September 2019, the appellant filed a notice of application for leave to appeal against conviction only.  He originally advanced four grounds of appeal but leave was granted by the Single Judge only on Ground 1.[1] 

3.  By notice dated 5 July 2021, the appellant applied to renew his leave application on Grounds 2, 3 and 4.  On 10 August 2021, Mr Eric T M Cheung, Solicitor Advocate for the appellant, filed Amended Perfected Grounds of Appeal in which Grounds 1 and 2 were slightly amended, while Grounds 3 and 4 were deleted.  Consequently, this hearing concerned the appeal against conviction on Ground 1 and the renewed leave application to appeal against conviction on Ground 2.

The grounds of appeal

4.  The grounds of appeal read as follows:

Ground 1:   Prosecution counsel unfairly advanced an improper and/or misleading submission about the appellant being “homeless” and the trial judge failed to remedy the resulting unfairness in the summing-up.

Ground 2:   The summing-up given by the trial judge is unfair and/or unbalanced in that she sought to summarise and repeat prosecution counsel’s submissions extensively, but did not do so in respect of defence counsel’s submissions and at times made adverse comments on them, particularly on the following issues: (1) the DNA and fingerprint evidence; (2) resisting arrest; (3) relevance of the appellant being tired during the VRI; (4) substantial value of the drugs found.

The prosecution case

5.  In the late afternoon on 6 July 2017, a team of police officers from the Narcotics Bureau, armed with a search warrant, entered Unit B inside a single-storey house in Pak Sha Tsuen, Yuen Long (Unit B).  It was not in dispute the appellant and Tang were inside Unit B at the time.[2] In an attempt to prevent the police from entering, the appellant shut the door on the police and put up a struggle, which was unsuccessful.  Inside the bedroom of Unit B, the police found a total of 3,146.03 grammes of cocaine narcotic and related paraphernalia for packing and manufacturing crack cocaine.[3]  The estimated value of the seized cocaine was $4,387,687.[4]

6.  The appellant was arrested by Detective Police Constable 5177 (PW1), who cautioned him for trafficking in the drugs found in Unit B.  The appellant replied, “Sir, the dangerous drug of cocaine in the carton box inside the room and on top of the table belongs to Ah Keung.”  When asked who was Ah Keung, he said, “The bald man together with me inside the flat when you, the police, gained entry into the flat.”  PW1 further cautioned the appellant for manufacturing a dangerous drug, to which he said, “Sir, the baking soda, the induction cooker and the pot are used by Ah Keung to heat the cocaine for the manufacturing of the dangerous drug.”[5] 

7.  PW1 searched the appellant’s cross-shoulder bag and found inside two mobile telephones, an unused mobile telephone SIM card, two bundles of cash of $3,010 and $21,120 each, and two bunches of keys.  It was not in dispute that one of the bunch of four keys could open the main iron gate and the glass iron gate of the house and the gate and door of Unit B.[6]  The other bunch of keys was for the appellant’s home at Tin Yiu Estate, Tin Shui Wai.[7] 

8.  It was an admitted fact that forensic examination for fingerprint and DNA were carried out at Unit B.[8]  It was confirmed that the appellant’s left thumb print was located 3 cm from the “on/off switch” of one of the electronic scales (exhibit P15)  on the bedroom table;[9] his left thumb print was found on the wooden main door of Unit B;[10] and his DNA was found on one of the plastic bags containing the dangerous drugs (exhibit P7), which was also on the bedroom table.[11]

9.  It was an admitted fact that Tang had pleaded guilty to, and accordingly was convicted of, trafficking in the cocaine found in Unit B.[12] A tenancy agreement was also seized by the police, which stated that Tang and a female were the co-tenants of Unit B since 17 July 2016, at a monthly rent of $5,500.[13]  

10.  It was also an admitted fact that on 8 July 2017 at Yuen Long Police Station, Tang and the appellant complained that they had been assaulted by police officers when they were arrested in Unit B.[14]  They were both taken to Tuen Mun Hospital for medical examination at 3:15 hours on that day.[15]

The appellant’s interview

11.  A video recorded interview (VRI)  was conducted with the appellant.  It was accepted that he participated in the interview voluntarily and there was no challenge to its admissibility.[16]  In the VRI, he largely repeated what he said upon his arrest, and maintained that the cocaine was brought back to Unit B by Tang and the cocaine and related paraphernalia belonged to Tang. 

12.  In his VRI, the appellant said that from 27 June 2017 he “lived around at friends’ residences”.[17]  He stayed at Tang’s unit from 3 July 2017 until he was arrested in the afternoon on 6 July 2017. He explained he “didn’t return home at that time”.[18]  He said in the early hours on 3 July 2017 he needed a place to sleep and bathe, so he made contact with Tang to borrow the keys to his unit.  He got them from Tang at the housing estate where he was living, Tin Yiu Estate, and took a taxi by himself to Tang’s unit.  He knew where to go because more than half a year ago he accompanied Tang when he was looking for a place to rent.[19] 

13.  In the afternoon on 6 July 2017, at about 1 or 2 pm, he heard noises that woke him up.  It was Tang arriving back at the unit.  Tang told him to go back to sleep.  However, he still heard noises and saw “the paper box and several bags of items” on the ground.[20] He said Tang told him it was “Coke”, which he explained was cocaine.[21]  He went back to sleep but when he went to the washroom he saw some pots, bowls and soda powder as well as an induction cooker.  It seemed to him that Tang was heating something.  He was mixing the soda powder with the Coke and heating the mixture.  Tang told him to ignore him and he went back to sleep.[22] 

14.  Sometime after 4 pm, the appellant woke up again when he heard “lots of noises outside”.[23]  He said, “I saw you people all rushing in” and “I was scared, then you people caught me”.  He agreed that he heard sounds, got up, knew there were police and thought of running away.  The police came in and “caught me”.[24]

15.  Five bags of white powder were shown to the appellant which he said were “inside the box” that was placed on the floor.  He knew these were dangerous drugs.[25] He was shown other bags of drugs, one of which contained 54 small packets of drugs.  Upon being told these items were found on the table in the room where he had slept (the “bedroom”), he confirmed he had seen them.[26] 

16.  Other items found on the table in the bedroom were shown to the appellant, which included packing tools, GLAD ziploc bags, and a large pile of 10 resealable plastic bags.  He said he saw these items but they belonged to Tang.[27] He confirmed he saw the large black electronic scale and a small black electronic scale on the table.  However, he did not know what they were for and had no impression of the black electronic scale.[28]  He thought he saw the scissors and the bowl found on the table in the kitchen.[29] 

17.  The appellant confirmed he saw the induction cooker and a pot that was found in the kitchen being used by Tang, who was heating soda powder.  He also saw on the table in the kitchen a large bowl containing a packet of soda powder.[30]  He was asked about the two cigarette butts found in the kitchen but said he did not smoke.  As for the three toothbrushes recovered from the washroom, he said one belonged to him.[31] 

18.  The appellant acknowledged he was carrying a black bag when he was arrested.  Inside the zipper compartment of the bag there was a pile of notes in the sum of $21,120, which he said he had “saved previously, because I am now homeless, so I took the sum of money, which were the remains (of his savings).”[32]  He confirmed the sum of $3,010 found in the wallet inside the cross body bag was also his money which he said he earned at work.[33] He confirmed there were two bunches of keys in the bag.  One bunch belonged to him which were his “home keys, Tin Yiu Estate”.[34]  The other bunch of four keys were given to him by Tang on the night of 3 July 2017, when he was “homeless”.[35] 

19.  Also found in the bag were an unused China Mobile phone card, which was given to him by Tang as he had no phone card; a Samsung phone, which was used by him, with a phone card from Telecom Digital Holdings Ltd; and a blue and black Nokia phone, which he said he used before, but the money had run out on the stored value card, so he left it on the table.[36] 

20.  Some parts of the appellant’s VRI, which concerned the appellant being “wanted” for breaching a probation order, were redacted by agreement of both counsel.  This was his explanation for why he had been “living around at friends’ residences” from 27 June[37] and had not returned home.[38]

21.  The appellant had keys to his home at Tin Yiu Estate and he took the police there for a house search.[39]

The defence case

22.  The appellant did not testify, nor call any witnesses on his behalf.  He relied on the exculpatory statements given by him in his VRI that he had been staying temporarily at Tang’s unit, and while he had knowledge of the cocaine and the related paraphernalia, he had nothing to do with them. 

23.  Defence counsel put to the police witnesses that (i) the appellant did not put up a struggle or resistance when the police effected arrest on him; and (ii) they had framed the appellant by pressing his fingers against the bottom of the electronic scale (exhibit P15)  and pressing a bag of drugs (exhibit P7)  against his face and mouth, which they denied. 

The appeal of Ground 1

24.  In Ground 1, Mr Cheung complains that prosecuting counsel made an improper and misleading submission about the appellant being “homeless” to the jury, and that the judge failed to remedy its impact in her summing-up to the jury. 

25.  The appellant in his VRI had provided an explanation for his presence in Unit B but this was not revealed to the jury as the parties agreed it was prejudicial to the appellant.  The appellant had a criminal conviction for trafficking in a dangerous drug for which he was sentenced to probation for 15 months.[40] He revealed in his VRI that he had been sentenced to probation for voluntary drug treatment on 15 June 2017, but ran away 6 days later on 21 June 2017.  He was told by his probation officer to attend court on 27 June 2017 but failed to do so.  He therefore did not go home and started living at friends’ residences from 27 June 2017.  He lived at Unit B from 3 July 2017 until he was arrested for the present offence.

26.  Mr Cheung contends that this put the appellant in a dilemma because his explanation for being present at Tang’s unit would reveal prior criminality of the same kind for which he was being tried.  He cites R v Cook,[41] in which the New South Wales Court of Criminal Appeal addressed the question whether the revelation of a prior criminal record as part of an exculpatory statement by an accused caused unfair prejudice to him.  The trial judge in that case admitted evidence of flight by the appellant, having ruled not to exclude the evidence pursuant to section 137 of the Evidence Act 1995.[42]  It was argued by the appellant that in order to give an explanation for his conduct in respect of the flight evidence he would necessarily reveal the existence of an Apprehended Domestic Violence Order (ADVO)  against him, his previous breach of it and an assault.  There was a voir dire on the issue and the trial judge refused to exercise his direction under section 137 to exclude the evidence.  The Court held that the evidence was wrongly admitted.  Simpson J, with whom the other judges agreed, said:

“48. … The admission of the evidence put the appellant in an awkward position. His response to the evidence not only disclosed previous criminal offences, it disclosed criminal offences with a disturbingly close relationship to the offence with which he was charged. That the evidence would have a prejudicial effect is clear. The appellant’s explanation, although disbelieved by the trial judge (and disbelieved in terms forcefully expressed)  was not, in my view, incapable of belief by a jury. The appellant had gone to Ms Bruen’s home in the early hours of the morning, while she was in bed, and joined her, uninvited, in her bed. Whatever he said to police about his state of mind with respect to the currency of the ADVO, it was then undoubtedly still current. His attendance at the house put him in breach of it, and having regard to the circumstances, in serious breach. It remains to be determined whether the prejudicial effect of the evidence was unfair. Bearing in mind the substance of the charge the appellant faced, and the nature of the evidence he would have to adduce in order to meet the flight evidence, I have come to the conclusion that the prejudicial effect was unfair, and that it outweighed the probative value of the Crown evidence. In this regard, it cannot be overlooked that the decision to admit the evidence may well have been a factor in the consideration of whether the appellant was to give evidence or not.”

27.  The issue in R v Cook did not arise in the present case because the appellant’s criminal history was not disclosed to the jury. After this was confirmed with Mr Cheung in oral submissions, he acknowledged the case was not entirely on point, if at all.

28.  At the pre-trial hearings of the present case, there was discussion as to whether the VRI should be edited to exclude the references to the appellant hiding because he was in breach of his probation for a drug trafficking offence, and if they were, how the parties should handle the matter if the appellant chose to testify in his defence.  Due to the likely prejudicial effect the matter might have on the jury, prosecuting counsel agreed with defence counsel’s suggestion to redact parts of the VRI that referred to the appellant’s previous drug trafficking conviction and the breach of his probation.[43] There was discussion about the possibility of the appellant giving evidence and being subject to cross-examination on this issue.  Defence counsel indicated that there was a consensus between the parties that there would be no objection for the appellant to disclose he was under probation but would not go as far as to reveal his criminal record.  The judge raised her concern about the possibility of the appellant giving evidence that contradicted what he had said in the redacted parts of the VRI, but left it to be dealt with if and when the situation arose.[44] 

29.  It is relevant to note that the defence at trial alleged the police officers had fabricated their evidence and framed the appellant.  Consequently, if the appellant had given evidence in his defence he would have been at risk of losing his shield and having his previous criminal conviction put before the jury.[45] It would appear there was no discussion, nor consideration, in respect of this issue at that stage or even later on in the proceedings.  We also note that the judge did not give a mixed statement direction in accordance with Specimen Direction 40.1, reminding the jury, amongst other things, that the exculpatory statements of the appellant in the VRI were not made on oath, or tested by cross-examination.[46]

30.  As the appellant did not testify, no evidence was led before the jury regarding his reason for staying at Unit B as contained in the redacted parts of the VRI.

31.  Mr Cheung complains that prosecuting counsel, in his closing speech made “disparaging remarks”, suggesting that the appellant was lying about being “homeless” at the material time:

“Another point we, the prosecution, ask you to consider is the defendant’s claim that he was homeless. He was supposed to be homeless according to what he said in his VRI, yet when the police tell him that they want to do a home search, get his permission to do a home search, he takes him to an address where he lives with his father. One can’t be homeless yet at the same time be living with your father. The father’s address or the address where he said he was living with his father was searched and nothing incriminating was found there. But the point is the defendant can’t be homeless when if the police ask him to – or tell him, ‘We want to do a home search’ then he takes them to an address where he lives with his father. I’d suggest that is the case and he was living there all the time, not in Unit B, as he claimed.”[47]

32.  Mr Cheung argues that prosecuting counsel’s remarks were at odds with what he knew from the redacted parts of the VRI and contrary to the agreement between the parties that those parts be redacted in order to avoid any prejudice to the appellant if his criminal record was disclosed.  He submits that the remarks were “grossly unfair” and gave the jury the false impression that the appellant had no explanation for being at Unit B other than he was dealing in the drugs with Tang.[48]  

33.  He further argues that the unfairness was exacerbated by the judge failing to intervene when prosecuting counsel made these remarks or to remedy the matter in her summing-up.  He complains the judge erroneously reminded the jury in respect of the VRI that “the edited parts were not relevant to this case.  You need not concern yourself as to what was edited, just consider what you watched and heard.”[49]  In respect of these remarks, we consider the judge was quite properly directing the jury not to speculate, and not to take into account a matter that was not evidence before them.  The judge, as was required, reminded the jury of the respective cases for the prosecution and the defence, and when summarising the case for the prosecution she mentioned, amongst other things, prosecuting counsel’s submission in respect of the appellant’s explanation that he was staying at Unit B:

“The other evidence the prosecution relies on is the defendant’s video recorded interview, which they suggest is not credible. His explanation flies in the face of common sense. Mr Donald relies on his explanation that he was living there because he had nowhere else to go. However, he had keys to his home elsewhere and he took the police to that home for a house search after his arrest.”[50]

She mentioned the matter again later on in her summing-up:

“The prosecution suggest that his innocent explanation of his presence in the unit given in his video recorded interview is not credible, including the fact that he was homeless and was asleep when woken by noise just before the police burst into unit B and arrested him.”[51]

34.  Mr Cheung submits that when prosecuting counsel had made this submission, the redacted parts of the VRI became highly relevant.  He contends the judge inflamed the situation by repeating and reinforcing prosecuting counsel’s submission, and further stating that the appellant’s explanation “flies in the face of common sense”.  He argues the judge was under a duty to consider whether the redacted parts should be disclosed to the jury, coupled with appropriate directions. 

35.  According to Mr Cheung, the judge:

“… should have invited the parties to consider disclosing the edited parts to the jury so that the jury understood that the appellant did give an explanation in the VRI as to why he lived at Tang’s unit temporarily at the time instead of living at home, namely, because of his breach of a probation order, perhaps redacting only the reference to the earlier drug trafficking conviction to avoid its prejudicial effect, with a clear direction to the jury that they must not speculate why the appellant had a probation order in the first place and that the jury must not draw any adverse inference against the appellant because of the probation order).”

He adds that this suggested approach would be in line with the consensus apparently reached between the parties before trial that the probation could be disclosed to the jury if the appellant’s reason for temporary shelter was to be raised when he gave evidence at trial.[52]  

36.  As is apparent, the essence of the complaint under this ground is that the appellant’s reason for staying at Unit B went to the heart of the defence case, and the judge’s failure to remove the prejudice to the appellant by prosecuting counsel’s submission, which the judge repeated and reinforced, had deprived him of a fair trial. 

The respondent’s reply to Ground 1

37.  Ms Monica Chan, for the respondent, refers to the discussions between the judge and counsel prior to trial on 3 September[53] and 4 September 2019.[54]  She points out that it was at the initiative of defence counsel that parts of the VRI were redacted.  Prosecuting counsel agreed because the defence considered those parts to be prejudicial.  Defence counsel further explained to the judge that he was instructed that if the appellant gave evidence he would mention the breach of the probation order but nothing more. 

38.  Ms Chan points out that defence counsel made no comment or complaint about the matter to the judge during the trial, particularly after prosecuting counsel had made the impugned remarks. We note there was no objection by defence counsel to the impugned remarks.  Instead, defence counsel in his closing speech, put various suggestions to the jury as to why the appellant was staying at Unit B which were contrary to the appellant’s explanation contained in the redacted parts of the VRI.[55]  It moved the judge to remind the jury in her summing-up that these suggestions by defence counsel were not based on evidence.[56]

39.  In her submission, Ms Chan argues that the redacted parts were not relevant and would have been prejudicial to the appellant had they been disclosed to the jury.  She contends that what mattered in the circumstances was whether the defence case was appropriately summarised to the jury.  She submits that from the redacted VRI, the jury would have had no difficulty understanding that the appellant had a home, but had not returned there for some reason; and that he was merely present when Tang brought the cocaine back to Unit B.  She further submits that the word “homeless” used by prosecuting counsel, when put in the factual context of this case, would not have prejudiced the appellant.  It is relevant that the appellant himself said he was “homeless” in his VRI.  In explaining why he had such a large sum of cash on his person at the time of his arrest, he said that he was “now homeless” so he took his remaining savings.[57] 

40.  Ms Chan further argues that the complaint under this ground has to be considered in the context of the judge’s other directions to the jury.  She notes the judge reminded the jury that the appellant’s mere presence was not enough to prove his guilt; and that the jury had to find he was in possession of the cocaine and intended to deal with the drugs for the purposes of trafficking in them before they could find him guilty.[58]

41.  As for the judge’s comment that the appellant’s explanation “flies in the face of common sense”, Ms Chan submits that this was not an instance of the judge expressing a personal view, but rather describing the prosecution’s submission as to the credibility of the appellant’s claim that he was living in Unit B while he had keys to a home elsewhere.

Discussion

42.  As we have already noted, this ground is not concerned with whether the appellant’s explanation contained in the redacted parts of the VRI would have been unfairly prejudicial to the appellant if it had been disclosed, which was considered in R v Cook.  In the present case, the appellant’s criminal record and breach of probation had not been disclosed to the jury.  The issue engaged in this ground is whether prosecuting counsel’s remarks about the appellant’s claim that he was homeless when he was living elsewhere were unfairly prejudicial to the appellant and denied him a fair trial, when prosecuting counsel knew the appellant had given an explanation for why he was staying at Tang’s unit, which had been agreed between the parties not to be disclosed. 

43.  In oral submissions, it was accepted by Mr Cheung, that the factual matters mentioned by prosecuting counsel in his closing speech reflected the evidence before the jury.  They were:

(1)  the appellant said he was homeless in his VRI; 

(2)  the appellant took the police for a home search at an address where he lived with his father;

(3)  the police searched the address where the appellant lived with his father and found nothing incriminating.

44.  It is not in dispute that these factual matters were a reflection of the evidence that was before the jury.  The appellant stated in his VRI that since 27 June 2017 he had “lived around at friends’ residences”.[59]  On 3 July 2017, he did not return home and had no place to sleep nor bathe.  He contacted Tang who gave him the key to his unit and he stayed there until he was arrested.[60]  When asked why he had a large sum of cash in his cross-shoulder bag, he said he was “homeless” and he had taken his remaining savings.[61]  Consequently, what is really in issue is prosecuting counsel’s last remark after reciting these factual matters: “I’d suggest that is the case (living at the address with his father)  and he was living there all the time, not in Unit B, as he claimed.”

45.  It would appear prosecuting counsel was challenging the appellant’s statement that he was “homeless” and submitting to the jury that the appellant had a home address where he was living “all the time” and not in Unit B as he claimed.  He was insinuating the appellant was not merely present when Tang brought the drugs back to the unit but was jointly involved with him in trafficking them.  This was consistently the prosecution case and there was other evidence prosecuting counsel relied on to prove the appellant was jointly involved with Tang in trafficking the drugs. 

46.  The appellant explained in the redacted parts of the VRI that he had been earlier convicted of an offence of trafficking in a small quantity of cocaine for which he was sentenced on 15 June 2017 to probation for voluntary drug treatment.  However, he ran away after 6 days, and he was told by his probation officer that as a consequence he had to attend court on 27 June 2017.  He did not attend the court hearing, and it appears he did not stay at his home in order to evade the authorities.  He lived at the residences of friends, including at Tang’s unit from 3 July 2017.[62]

47.  As we have already noted, the appellant’s defence was that the police officers had fabricated their evidence about him preventing them from entering Unit B and resisting arrest, and had framed him by bringing him into physical contact with certain exhibits to obtain a fingerprint and DNA from him.  In casting aspersions on the character of the prosecution witnesses, the appellant was at risk that if he gave evidence, he would be cross-examined in respect of his previous conviction.[63] Whether the redactions of the VRI was the right decision or whether it could have been dealt with differently is a vexed question.  It is not a matter that we need to address, nor have we been asked to do so by the parties. 

48.  Where the prosecution has agreed to exclude certain evidence from the trial because it would be unfairly prejudicial to the accused if it were admitted into evidence, it would be unfair to exploit any failure by the accused to adduce such evidence and, depending on the particular facts and circumstances of the case, to make a comment or submission contrary to such evidence.  Factors that may be relevant in determining whether any unfairness would result against an accused, include the nature and significance of the evidence that has been agreed to be excluded, and the evidential basis and effect of any comment or submission.

49.  This Court has previously stressed that counsel in delivering their closing speeches to the jury must be very careful about what they say and ensure that they properly address the evidence and the issues with strict adherence to the fundamental principles of fairness.[64] The role and function of a prosecutor is of the upmost importance in our criminal justice system and was described by Rand J in the Supreme Court of Canada in Boucher v The Queen:[65]

“It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of a prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

50.  Prosecuting counsel in his closing speech questioned the appellant’s claim that he was “homeless” by insinuating that he was not staying at Tang’s unit because he lived elsewhere with his father, knowing he had given an explanation for why he was staying at Tang’s unit, which the parties had agreed would not be disclosed.  We note, however, defence counsel did not object to prosecuting counsel’s remarks, but instead responded in his closing speech by putting various suggestions to the jury as to why the appellant was staying with Tang which he also knew were contrary to the explanation the appellant had given in the redacted parts of his VRI.  Nevertheless, we are of the view that the remarks of prosecuting counsel were inappropriate and should not have been made.  We find therefore the remarks by prosecuting counsel, which were repeated by the judge in her summing-up to the jury, constituted a material irregularity.[66] 

51.  We point out, however, it was not in dispute the appellant stated in his VRI that he was homeless and that was the reason why he had a large sum of cash with him, which represented his remaining savings.  He also stated he was staying with Tang at the relevant time, although he lived with his father at another address.  He explained that he was temporarily staying with Tang, who had given him keys to the unit. In this sense, prosecuting counsel’s remarks were consistent with the assertions by the appellant in his VRI. 

52.  We note that the judge did not give a mixed statement direction which would have been to the disadvantage of the appellant because the jury would have been reminded that his answers to the questions in his VRI had not been given on oath, nor tested by cross-examination.  Instead, the judge directed the jury that the appellant’s VRI was credible and supported his innocence.  We also note that no objection was raised by defence counsel to prosecuting counsel’s remarks, nor did he apply to put before the jury the appellant’s explanation that he was staying at Tang’s unit because he was in hiding from the authorities due to a breach of a probation order.

53.  The material irregularity was prosecuting counsel’s insinuation that the appellant was not staying at Tang’s unit as he claimed, but instead was living at another address with his father at the time of the offence, when prosecuting counsel knew the appellant had given an explanation which had been redacted from the VRI because it revealed the appellant had committed an offence of the same kind for which he was on trial. The question is what was the real effect of prosecuting counsel’s remark.  In our opinion, the appellant had a fair trial, and as we will explain later when addressing the proviso, there was ample evidence to justify the verdict.

The renewal of Ground 2  

54.  Mr Cheung seeks to renew the application for leave to appeal on Ground 2.  He complains that the judge’s summing-up was unfair and unbalanced to the defence in that she sought to summarise and repeat only prosecuting counsel’s submissions extensively on four specific issues, namely, (i) the DNA and fingerprint evidence; (ii) the alleged act of resisting arrest by the appellant; (iii) the relevance of the appellant being tired during the VRI;[67] and (iv) the substantial value of the drugs found, and several other pieces of circumstantial evidence that were said to be in the appellant’s favour.  Mr Cheung submits, the judge only drew the jury’s attention to the points that were favourable to the prosecution, and also failed to balance her remarks by making reference to the points that were favourable to the defence.

(i)  The DNA and fingerprint evidence

55.  The complaint in respect of the judge’s directions of the DNA and fingerprint evidence has two parts.  First, the judge misdirected the jury that they could only draw an inference of a police frame-up in favour of the appellant if it was the only reasonable inference.  Secondly, the judge failed to address the differential consideration that should have been given to the DNA evidence as opposed to the fingerprint evidence.

(a)  The only reasonable inference

56.  It is argued by Mr Cheung that the following direction by the judge resulted in a real danger that even if the jury were of the view that one of the reasonable inferences to be drawn in this case was that the appellant’s fingerprint and DNA were planted by the police, they would have felt obliged to follow her direction not to draw such an inference as it was not the “only inference in the circumstances”:

“You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed. Members of the jury, in a criminal case the inference drawn must be the only inference that can be drawn in all the circumstances. You must use your common sense and experience as men and women of the world to draw the reasonable inference and the only inference in the circumstances.”[68]

57.  Mr Cheung submits that the prosecution relied heavily on the presence of the appellant’s fingerprint on the large scale and his DNA on the ziplock section of one of the bags containing the drugs.  He points out that in respect of this evidence the appellant’s defence was that he was framed by the police and that they pressed the large scale on his thumb and rubbed the plastic bag on his face and mouth.  He refers to defence counsel’s comments on this evidence in defence closing speech to the jury:

“Now, lastly, members of the jury, these are the areas I want you to consider whether the police officer is credible. If they are not credible, is it likely or is there any possibility that the defendant is being planted? Why is it his DNA is only left on one plastic bag and not the rest if he is actually doing the opening and closing or putting dangerous drugs inside the plastic bag? If he is using the scale, the large scale, which is not necessary, small scale will do the job, why is there is only the left thumb on it, no other fingers? Do you think that somebody operated the scale, weighing it, taking powders onto it, just can do it by a left thumb? I ask you to consider.”[69]

58.  Mr Cheung argues that the judge failed to repeat this aspect of defence counsel’s closing speech to the jury, and should have directed them that they could not rely on the DNA and fingerprint evidence unless they were sure that such evidence had not been obtained in the oppressive circumstances suggested by the defence.  He contends that the situation is akin to reliance by the prosecution of an accused’s confession when the defence case was that the confession was obtained involuntarily by police misconduct.  He refers to the Mushtaq direction but does not refer to any authorities to support his submission. 

59.  We note at this juncture that when an issue arises in relation to the voluntariness of a confession in respect of the oppressive conduct of the authorities it would be necessary to lay an evidential foundation to decide the issue: R v Mushtaq;[70] HKSAR v Pang Hiu Sang;[71] and HKSAR  v Yiu Chi Ming.[72] There was no evidence to support the allegation of police misconduct.  The appellant did not testify, nor was he able to point to any relevant evidence to support such an allegation.

(b)  Differential consideration of the DNA evidence

60.  This aspect of the complaint concerns the DNA evidence.  Mr Cheung states in his submission that 13 seized plastic bags containing the drugs were “actually tested” for DNA but the appellant’s DNA was found on only one of the plastic bags (exhibit P7).[73]  Of the fact that the 13 plastic bags were tested for DNA, he relies on the comments of defence counsel in his closing address in respect of the DNA evidence.[74]  He also refers to the cross-examination of the prosecution expert, Dr Lin Sze Wah (PW6)  that (a) the chance to obtain a large amount of DNA from body fluid (such as saliva)  was much higher than from skin cells when one touched something; and (b) the chance of DNA being obtained from skin cells when one touched something depended on the individual person, as some people might have little chance of losing cells when they touched an item.[75]

61.  On the basis of this evidence, Mr Cheung argues that the absence of the appellant’s DNA on 12 out of the 13 plastic bags should not be regarded as a “neutral factor”,[76] as stated by the judge: HKSAR v Au Yeung Fu.[77]  He contends it should have been for the jury to decide whether they should attach any weight to the negative findings in relation to the 12 bags of drugs tested.  However, the judge’s directions on this aspect only reflected the stance taken by the prosecution which was unfair to the defence. 

62.  Mr Cheung further submits that the judge did not correct the following highlighted comments of prosecuting counsel in his closing address to the jury:

“So these allegations by the defence that the police beat him up or assaulted him or forced him to rub the DNA packet against his face is a complete fabrication. And as you heard, rubbing the packet, P7, where his DNA was found against his face would not have resulted in any DNA. The DNA on that packet came as a result of him touching the ziplock on the packet, not from anybody forcing a packet of -- forcing the drugs against his face.”[78] (Emphasis added)

63.  He complains that the judge simply repeated PW6’s evidence in the summing-up without correcting prosecuting counsel’s submission which was contrary to the evidence.  He makes the point that just as a summing-up may be unbalanced for what it does say, it may also be unbalanced for what it does not say: HKSAR v Chiong Bernard.[79]

(ii)  Resisting arrest by the appellant

64.  Mr Cheung submits that defence counsel had made a forceful submission to counter the prosecution’s submission that the appellant’s alleged resistance upon arrest was “guilty behaviour” forming part of the circumstantial evidence against him.[80] In particular, defence counsel submitted that if the appellant had resisted arrest he would be arrested and cautioned for this offence and asked for an explanation by the police, but no inquiry was made of him at the scene, nor was he asked questions about the matter in his VRI, which suggested that it did not happen.[81] 

65.  He contends the judge therefore failed to grasp the importance of this part of defence counsel’s submission and simply “twisted” it into the issue of the relevance, or irrelevance, of the appellant not having been charged with the offence of “resisting police”:

“The fact that he has not been charged with resisting arrest is irrelevant. It does not mean he did not resist arrest.”[82]

(iii)   The relevance of the appellant being tired during the VRI

66.  Mr Cheung refers to defence counsel’s comments in his closing address that the appellant was “kind of tired but he still cooperated with the police.  He says what he knew and to make a frank sort of disclosure to the police.”[83] He argues, however, the judge failed to summarise this salient feature of the defence case and “twisted” it into a question of whether he was “fit to be interviewed”.  He refers to the following passage of the judge’s summing-up and notes that there was no reference to defence’s counsel’s submission.

“Mr Shaw has asked you to note that the defendant seemed to be very tired when you watched the video-recorded interview. But you will recall that PW1 asked him if he was fit to conduct a video-recorded interview on at least two occasions.”[84]

67.  We note that the judge did mention to the jury in another part of the summing-up that the appellant had made an immediate and spontaneous response when he was arrested, admitting he knew there were drugs in the premises but telling the police everything belonged to Tang.  The judge added that the appellant’s explanation in his VRI could support his innocence.[85] 

(iv)  The substantial value of the drugs and other matters

68.  Mr Cheung submits that the judge only emphasised with the jury the prosecution’s submissions on the substantial value of the drugs,[86] without also mentioning the countervailing argument by defence counsel, that even if Tang brought $4.3 million worth of cocaine into Unit B, it would not automatically render the appellant an accomplice.[87] 

69.  Mr Cheung further submits that the summing-up only repeated the points made by the prosecution but failed to highlight the factual circumstances that were said to be in the appellant’s favour, namely, he used his personal telephone as opposed to an unregistered number;[88] he was kept inside Unit B by the police for five hours without any apparent reason;[89] and he was able to identify the police officers that had allegedly mistreated him.[90]  All of these matters, he contends, were important to the defence but were not mentioned in the summing-up. 

70.  Mr Cheung contends the judge had clearly tried to “brush off” or “downplay” the defence submission in the summing-up,[91] rendering it unfair and unbalanced overall and the appellant’s conviction unsafe: HKSAR v Jitsatta Chosita;[92] HKSAR v Yuen Cheung Ming, Leon;[93] HKSAR v Tam Chu Kwong;[94] HKSAR v Hong Tsz Yin;[95] and HKSAR v Wong Yu Wing.[96]

The respondent’s reply to Ground 2

(i)  The fingerprint and DNA evidence

71.  Ms Chan submits that when the judge’s directions on the DNA and fingerprint evidence are read in their full and proper context, there would have been no room for any misunderstanding by the jury in considering this evidence.  The judge did not make any adverse comment or direction as to the absence of the DNA and fingerprint evidence. 

72.  She argues the directions in this regard were in line with the authorities and the Specimen Directions.[97] More importantly, the judge had presented the defence case to the jury,[98] namely the appellant had been framed by the police, and as a result of which his fingerprint and DNA came to be on the exhibits.[99]  As such, it cannot be said that the jury were prevented from having regard to the lack of the fingerprint or DNA evidence in the appellant’s favour.

(ii)  Resisting arrest by the appellant

73.  It is Ms Chan’s submission that the judge’s comments as to the appellant’s alleged resistance upon arrest were fair and proper in the circumstances.  She points out that the judge had reminded the jury that they were the sole arbiters of the facts and that her views of the evidence were not evidence, which they were entitled to reject.[100]

(iii)   The relevance of the appellant being tired during the VRI  

74.  Ms Chan notes that the admissibility of the VRI was not challenged.  The appellant elected not to testify and sought only to rely on his answers in the VRI.  The judge’s remark that the appellant was “fit to be interviewed” was based on the answers he gave in his VRI.

75.  In the summing-up, the judge made it plain to the jury that the defence case was that the appellant’s answers were credible and would support his innocence.[101]  She also reminded them that if they found what the appellant said in his VRI was “true or maybe true”, they should find him not guilty of the charge;[102] and even if they were to completely reject the defence version, the prosecution still had the burden to prove its case against the appellant.[103]  

(iv)  The substantial value of the drugs and other matters

76.  Ms Chan emphasises that the judge has no duty to repeat every point the defence counsel made in the closing speech.  She submits that the essence of the defence case and the material issues were squarely placed before the jury.  The summing-up, when considered as a whole, was fair and balanced. 

Discussion

77.  Whilst it is undoubtedly recognised that a summing-up to a jury should be fair and balanced, it does not impose on a judge a duty to repeat the submissions made on behalf of the defendant in the course of counsel’s closing speech to the jury.[104] The duty of the judge is to summarise the issues and the evidence relating to those issues clearly, accurately and fairly to the jury.[105]  This duty includes fairly and accurately placing before the jury for their consideration the defence advanced by a defendant.  The fundamental purpose of a summing-up is to provide a fair statement and analysis of the case for both sides.

78.  From our assessment of the judge’s summing-up to the jury she put the defence case to them, although there were occasions when she had to address the fact that there was a lack of evidential support for some of the points made by defence counsel in his submission.  The judge also directed the jury that they were the sole arbiters of the facts and, in particular, that they were free to reject any view that she might express on the evidence unless it accorded with their own view of the evidence.

79.  We are satisfied that the judge has fairly and accurately set out the defence case to the jury in her summing-up.  There was no dispute that the appellant was present in Unit B and had keys to it when the police raided the premises; and that he knew there were drugs and related paraphernalia in the unit.  In fact, the appellant knew the type of drugs that were involved and being manufactured as well as the items used in the manufacturing process and where they were located.  His defence as set out by the judge in her summing-up was as follows:

(i)  The appellant was staying temporarily with Tang since 3 July 2017, as he was homeless at the time.[106] 

(ii)  The drugs and related paraphernalia belonged to Tang and although the appellant knew there was cocaine in the unit, he had no control over the drugs, nor did he intend to deal with them in any way.[107]

(iii)  The appellant was merely present when Tang brought the drugs back to his unit.[108]

(iv)  The appellant was assaulted by the police and taken to hospital.[109]

(v)  The appellant seemed to be very tired in his VRI.[110]

(vi)  The appellant did not struggle with the police nor put up any resistance.[111]

(vii)  PW1 pressed the appellant’s fingers on the scale and rubbed a bag of the drugs against his face and mouth.[112]

(viii)  There was a lack of fingerprint or DNA evidence on the other exhibits, which was suspicious and supported the defence allegation that the police had framed him.  However, the judge remarked that the lack of fingerprint evidence was a neutral factor and there was no more fingerprint evidence which proved nothing either way, having referred to PW5’s evidence about the chances of leaving fingerprints on different surfaces.[113]

(ix)  The appellant explained in his VRI that he had nothing to do with the drugs.  He woke up at 1 or 2 pm and saw Tang with a box of drugs; he next woke up and saw Tang cooking the drugs; he again woke up when police rushed into the unit; and he was scared and thought about running away.[114]

(x)  The cash found in his bag were his savings from work and the other set of keys were for his family home.[115]

(xi)  The appellant’s explanation in his VRI was credible and supported his innocence.[116]

(xii)  The circumstantial evidence did not allow the only inference to be drawn that the appellant was in possession of the drugs for the purpose of trafficking.  When the appellant was arrested he gave an immediate and spontaneous reaction, admitting he knew what was in the premises but telling the police that everything belonged to Tang; the police had framed him by pressing his thumb against the scale and pressing a bag of drugs against his face and mouth; there was no struggle by him with the police when they first entered; and the police witnesses were not credible.

80.  There are various subsections to this ground in which it is complained that the judge gave an unfair and unbalanced summing-up to the jury.  We will address each in turn.

(i)  The fingerprint and DNA evidence

81.  It is complained that the judge did not fairly or properly explain the fingerprint and DNA evidence.  It needs to be recalled that the appellant’s thumbprint was found on the large scale and his DNA was found on the ziplock of one of the bags containing drugs.  The appellant’s defence was that he was framed by the police and that they put the largescale on his thumb and rubbed the plastic bag on his face and mouth.  The appellant did not give evidence about these matters and the suggestions to the police officers that they had framed him were denied.  There was a general challenge as to the credibility of the police officers and their evidence as to what took place. This was all addressed by the judge in her summing-up to the jury. 

(a)  The only reasonable inference

82.  It is complained that the judge after discussing the defence case reminded the jury that when drawing an inference it had to be the only reasonable inference.  The impugned remarks were not made by the judge when discussing the defence case.  She made them in the context of the prosecution case, addressing the fact that it was a circumstantial case where they were being invited by the prosecution to draw an inference of guilt against the appellant, which she reminded them had to be the only reasonable inference.  It is necessary to set out the passage in full to have a clear understanding of the context in which the judge made her remarks.  She said:

“Drawing of inferences simply means the prosecution is relying upon evidence of various circumstances which they say when you look at them all together, look at them as a whole, will lead you to the conclusion that the defendant possessed those drugs and trafficked in those drugs. You are entitled to infer the existence of another fact from the facts you find proven. If you find certain facts proved from the oral evidence, from documents or the Admitted Facts or the physical exhibits, you are entitled to infer the existence of other facts. It is important to remember that to draw an inference against the defendant you would have to be sure that the inference was the only reasonable one to be drawn. If on a set of facts you find proved there is reasonable inference to draw against the defendant, but at the same time there is a reasonable inference to draw in the defendant’s favour, then you must not draw the inference against the defendant. You are only entitled to do so if the inference is the only reasonable inference.

So what circumstantial evidence is the prosecution relying upon to show will prove that the defendant knew there were drugs, possessed the drugs with Tang for the purpose of trafficking in those drugs? The circumstantial evidence is this, the prosecution relies on the fact that the defendant was in the premises, inside the premises at 4 pm in the afternoon with all windows, curtains closed or taped up and with all the drugs and the paraphernalia normally associated with packing drugs for the purposes of selling or supplying to others in the premises. The prosecution relies on his admission that he knew there were drugs there. And although he said he woke up just hours before the arrest to find or see all those drugs on the premises and had nothing to do with those drugs, his fingerprint was on a scale covered with traces of cocaine obviously used for weighing drugs, and his DNA was found on one of the bags containing cocaine near that scale on the table.

The prosecution relies on the fact that he resisted the police when they arrived. You are entitled to consider whether this supports the case brought against him by the prosecution.

…

The prosecution has suggested you consider the fact that there was a large quantity of drugs worth nearly $4.4 million and some evidence of manufacturing, which, if the defendant is to be believed, Tang was happy to deal with it all in the defendant’s presence and give him keys to access the premises when he was in no way involved in such a large scale operation. Essentially, the defendant was an outsider with access to what should be a very secret operation. The prosecution says the common sense dictates that he would not be there if he was not knowingly involved, even if he was a friend.

The prosecution suggests that if you consider all of those pieces of evidence against him together you can draw the only inference that he was in possession of the dangerous drugs for the purposes of trafficking in them with Tang. The prosecution is saying that the facts, when layered on top of all other facts, will lead you to the sure conclusion that there is only one irresistible inference to draw.

The defence, on the other hand, says that the circumstantial evidence does not add up to the only inference that can be drawn in all the circumstances. Mr Shaw stressed the defendant’s immediate and spontaneous reaction when arrested was to admit he knew what was in the premises but told the police everything belongs to Tang. Take into account what he said in this regard as evidence of his reaction when first questioned about the drugs. The defence suggest that the police framed the defendant by pressing his thumb against the weighing scale and pressing a bag of drugs against his face and mouth. They suggest there was no struggle when the police first entered. The defence say his explanation in his video-recorded interview was credible and supports his innocence, whereas the police witnesses are not credible.

You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed. Members of the jury, in a criminal case the inference drawn must be the only inference that can be drawn in all of the circumstances. You must use your common sense and experience as men and women of the world to draw the reasonable inference and the only inference in the circumstances.”[117] (Emphasis added)

83.  It is plain from a reading of the above passage that the judge was reminding the jury that as the prosecution case was a circumstantial case, when drawing an inference it had to be the only reasonable inference. She had reminded the jury before and after this passage that if they found the defence version was true or may be true, then they should find the appellant not guilty.[118] We find there is no basis for the appellant’s complaint when the judge’s impugned remarks are considered in their full and proper context. 

84.  It is manifest, in our view, that the judge was directing the jury on the issue of inferential reasoning in respect of the prosecution case.  At the outset of the passage, she explained to the jury that the prosecution were inviting them to draw inferences in order to find the appellant guilty, emphasising that in drawing an inference against the appellant they had to be sure it was the only reasonable inference to draw. She added that if there was a reasonable inference in the appellant’s favour, they could not draw the inference against him because it would not be the only reasonable inference.

85.  The judge then went on to address these directions in respect of the prosecution’s case, noting the defence submission that the circumstantial evidence did not avail itself to the only inference as suggested by the prosecution.  She emphasised with the jury the defence argument against the prosecution case.

86.  We reject the suggestion by Mr Cheung that the judge, by her remarks, directed the jury that the defence bore a burden of proof to rebut the prosecution’s submission to draw the only reasonable inference from the circumstances by establishing a countervailing inference that was the only one to draw from the circumstances.

87.  At one stage in oral submissions, Mr Cheung argued that the judge’s remarks meant that the appellant’s allegation that he had been framed by the police could only be established if it was the only reasonable inference to draw from the circumstantial evidence.  However, he accepted there was no evidence of improper conduct by the police pressing exhibits on the appellant to extract fingerprint and DNA evidence.  Therefore, there was no circumstantial evidence to draw an inference that the appellant’s fingerprint and DNA were planted by the police.  In any event, the presence of the appellant’s fingerprint and DNA on the relevant exhibits had been conclusively proven by way of admitted facts.

88.  The submission by Mr Cheung that the judge should have directed the jury that they had to be sure that the fingerprint and DNA evidence had not been obtained in the circumstances suggested by the defence can be promptly disposed of.  The defence suggestions were not evidence.  The police officers had denied that they had mistreated the appellant as suggested and there was no evidence from the defence of any such mistreatment.  The appellant did not testify but instead relied on the contents of his VRI in which he makes no statement of any mistreatment by the police.

(b)  Differential consideration of the DNA evidence

89.  It is complained that prosecuting counsel misrepresented the DNA evidence in his closing speech to the jury, which was not corrected by the judge. Prosecuting counsel said:

“So these allegations by the defence that the police beat him up or assaulted him or forced him to rub the DNA packet against his face is a complete fabrication. And as you heard, rubbing the packet, P7, where his DNA was found against his face would not have resulted in any DNA. The DNA on that packet came as a result of him touching the zip lock on the packet, not from anybody forcing a packet of -- forcing the drugs against his face.”[119]

90.  We are not persuaded that prosecuting counsel’s remarks constituted a material misrepresentation.  It was an admitted fact that the appellant’s DNA had been found on one of the plastic bags containing the drugs[120] and Dr Lin had given evidence about the chances of obtaining DNA left on an item.[121]  She said there was a higher chance of obtaining DNA from body fluid, such as saliva, whereas with skin cells it depended on the individual person.  She further said that “somebody may have little chance or less frequently lose the cells when they touch an item or object.”[122]  

91.  In addition to the admitted facts in respect of the fingerprint and DNA evidence, there was the evidence of the police officer (PW5)  from the Identification Bureau about the procedure that he followed in lifting fingerprints and collecting DNA.  His evidence was summarised by the judge as follows:

“PW5, PC 9489, was or is attached to the identification bureau and qualified to dust for and lift fingerprints as well as collect DNA. He arrived at about 8.30 that night and he waited for DNA to be collected by the chemist. After that, he was able to dust for fingerprints. He dusted from outside inwards, he said. He dusted the frame of the glass iron gate as well as the gate itself. He found two prints of value and lifted them. He later found a print on a doorframe of unit B which he had dusted and then lifted that print. He also lifted a clear valuable print from the larger electronic digital scale found on the bedroom table. He said he did dust other surfaces but found no more prints of value. He did explain to you, members of the jury, what he meant by a fingerprint of value. He explained that if he dusted and saw with his naked eye a clear print, then that was of value. He explained that a fingerprint had to have 12 or more features before it can be compared to a print and accepted by a court of law as evidence.

We know from the second set of Admitted Facts that there is no challenge to the evidence that the defendant’s thumbprint was located on the surface of P15, the larger digital scale, as well as the wooden main frame of the door to unit B. That officer PW5 did explain that he made the decisions what surfaces to dust, not any other police officer or PW2. And he did explain that he did not dust plastic bags at the scene because they are not flat and therefore it is harder to find fingerprints of value on them by dusting. He would normally suggest that plastic bags and paper items are sent to the identification bureau advanced technology section to conduct an examination there. He also explained that some surfaces retain fingerprints better than others. He said that the smooth mirrored surface of the larger scale made it easier to leave a fingerprint of value on it.

Mr Shaw in his closing speech referred to the lack of fingerprint evidence and DNA evidence on other exhibits and that lack was suspicious and supported the defence allegation of the police framing the defendant. A lack of fingerprint evidence on an exhibit is a neutral factor. The absence of such information does not necessarily help the defendant. Where there is no more fingerprint evidence, it proves nothing either way. PW5 gave evidence that the chances of leaving fingerprints of value differs with different surfaces of exhibits or items.”[123] (Emphasis added)

92.  Mr Cheung complains that the judge’s italicised remarks in the above passage were wrong. He submits that the absence of the appellant’s DNA in the 12 out of the 13 plastic bags tested should not have been regarded as a neutral factor.  He further submits that it should have been for the jury to decide if they would attach any significance to the negative DNA findings in relation to the 12 plastic bags tested.  As we will explain, this submission is based on an incorrect factual premise and therefore unsustainable. 

93.  Mr Cheung accepted that the judge’s comments in this passage were silent on DNA evidence and only focused on fingerprint evidence.  He also accepted that the judge’s comments about the fingerprint evidence were supported by the evidence at trial.  The essence of his complaint was that the judge’s comments when considered as a whole gave an impression to the jury that they also applied to DNA evidence.

94.  We explored in some detail the DNA evidence even though we did not have all the relevant transcripts included in the Appeal Bundle.  For this purpose, we accessed the statements of the expert witnesses in order to understand the nature and full extent of the DNA evidence.

95.  PW5 was the police officer of the Identification Bureau who attended the scene and dusted for fingerprints and collected DNA.  He mainly testified as to his approach in dusting for fingerprints and the types of surfaces or items that may or may not yield a fingerprint.[124]  PW7, is a government chemist, who took 13 pairs of cotton bud swabs for DNA examination from 12 plastic bags and one from 54 plastic bags.  It would appear that plastic bags earmarked for DNA examination were the ones that contained cocaine or crack cocaine.  She conveyed the 13 swabs for DNA examination to PW6, a government chemist, who specialises in DNA profiling.  She also received from the exhibits officer (PW2)  2 ziplock bags as well as 2 cigarette butts and 3 toothbrushes for DNA examination.  Of the 2 ziplock bags, she found human DNA on one of them which belonged to Tang.  Of the 13 swabs, she found human DNA on 6 of them, while the other 7 had none.  Of the 6 swabs, only 2 were conducive to DNA examination as the other 4 swabs were considered uninterpretable due to the poor quality of the DNA recovered.  Of the 2 swabs, one was found to have the DNA of the appellant (exhibit P7)  and the other of Tang.

96.  In his closing speech, defence counsel stated that another 12 plastic bags had “DNA swab and tested for DNA”, but the appellant’s DNA was only found on a single item, exhibit P7.  This was factually incorrect.  As we have already noted, only 2 swabs were found to have DNA which were conducive to DNA examination.[125]  One had the DNA of the appellant and the other that of Tang.

97.  We are satisfied that the judge was directing her comments to the fingerprint evidence and the jury would have understood this to be the case.  The judge’s comments have their origin in HKSAR v Law Wing Hong,[126] where the Court of Appeal said that the lack of fingerprint evidence was a neutral factor and where there was no fingerprint evidence at all it proved nothing either way.[127] See HKSAR v Mahabul Alam Khan.[128]  Mr Cheung is not taking issue with the judge’s remarks as they relate to fingerprint evidence, but only in respect of the DNA evidence.

98.  Even assuming that the judge’s remarks were a reference to the DNA evidence, we do not find they were wrong, or adverse to the appellant.  As we have explained, the DNA evidence did not support the submission made by defence counsel, nor was there any evidential foundation to assert that the appellant’s DNA found on the plastic bag containing the drugs was obtained by the police pressing the plastic bag against the appellant’s face and mouth.  This had been denied by the police officers and there was no evidence before the jury to support this assertion.  Indeed, it had been conclusively proven before the jury by way of an admitted fact that the appellant’s DNA had been found on a plastic bag containing drugs.

99.  We note the judge very fairly addressed this issue in her summing-up to the jury, in which she told them:

“You should remember that this evidence (the evidence of the fingerprint or the DNA)  relates only to part of the case, and whilst it may be of assistance to you in reaching a verdict, you must reach your verdict having considered all of the evidence.”[129]

Later again when summarising the defence case, the judge reminded the jury:

“You have to consider under what circumstances the fingerprint and the DNA came to be on the scale and the plastic bag. The defence have suggested to prosecution witnesses in cross-examination that the defendant was framed.”[130]

100.  The positive finding of the appellant’s DNA on a plastic bag containing drugs was strong evidence in support of the prosecution case.  Only two bags containing drugs were found to have DNA that were conducive to DNA examination.  As we had mentioned, one had the appellant’s DNA and the other that of Tang.  In these circumstances, the submission by defence counsel as to the lack of DNA evidence was factually incorrect and limited to positive findings of the DNA of the appellant and Tang on the two bags of drugs respectively.

(ii)  Resisting arrest by the appellant

101.  It is complained that the judge did not fairly summarise the defence arguments about the appellant resisting arrest by the police.  Defence counsel stated in his closing address to the jury:

“The prosecution also rely on the defendant resisted arrest. There is no evidence that the defendant intends to run away. He intended to return to the unit. The police officer, taking their evidence to the highest, is that he intended to shut the door and that’s it. As I said, this is only natural.

Now, if the defendant actually tried to run away and resist arrest, why is it that the police officer did not declare arrest on him was resisting arrest or obstructing police officer in the due execution of their duty? All right. This is basically a crime, apart from the trafficking, apart from the manufacturing, resisting arrest is another criminal offence. He should be arrested, cautioned and asked for an explanation.

Remember, the police officer never asked him, ‘Why did you resist arrest? Why did you try to shut the door? Why did you try to run away?’ It was never mentioned in their inquiry at the scene. And further in the video-recorded interview, none of those questions was asked. The police officer never asked the defendant, ‘Why is it at the scene you try to run away? Why is it at the scene you resisted arrest? Why is it at the scene you tried to obstruct our officer in the execution of their duty?’ It was never asked. It was never raised. Do you -- will it cause any suspicion on you that whether he resisted arrest, he struggled, was totally made up by the police officer? If that is what had actually happened why the police officer not make inquiry on two occasions? That is unreal. Unreal. Are we saying that the police officer failed to do their duty or do you think that simply it didn’t happen so that they did not ask?”[131]

102.  Mr Cheung complains about what the judge had said on the issue of resisting arrest in her summing-up.  The judge said:

“The prosecution relies on the fact that he resisted the police when they arrived. You are entitled to consider whether this supports the case brought against him by the prosecution. However, you should consider two questions. Firstly, you must decide whether the defendant did, in fact, try and shut the door on the police and then struggle when they tried to subdue him. If you are not sure he did this, then ignore this aspect of the evidence completely. But if you are sure he did, then ask yourself why the defendant resisted the police. The defendant may resist the police for many reasons and they may possibly be innocent reasons in the sense that they do not give any indication of guilt. For example, if he did not realise they were police officers. If you think there may be an innocent explanation for the defendant’s resistance, then you should take no notice of it.

It is only if you are sure he did not resist for any such innocent purpose, then his resistance can be regarded by you as evidence which supports the prosecution’s case. The fact that he has not been charged with resisting arrest is irrelevant. It does not mean he did not resist arrest. The prosecution suggest that his innocent explanation of his presence in the unit given in his video-recorded interview is not credible, including the fact that he was homeless and was asleep when woken by noise just before the police burst into unit B and arrested him. There was also the fact that PW1 said he was arrested carrying his cross-shoulder bag, which was not challenged by the defence, yet the defendant’s explanation was that he had been asleep in bed just before the police burst in.”[132]

103.  Mr Cheung’s complaint is that the judge did not mention the admitted fact that a complaint had been made against the police by both the appellant and Tang after their release from custody.[133] However, what Mr Cheung neglected to mention is that the allegation of the police having assaulted the appellant was put to the police officers in cross-examination which was referred to by the judge in her summing-up, including that PW4 had slapped the appellant’s face in the unit, which he denied.[134] 

104.  Mr Cheung also complains about the judge’s comments in relation to the police not charging the appellant for resisting arrest.  We find no merit in this complaint as it was not a matter that would have escaped the attention of the jury and did not require the judge to give the jury specific guidance in respect of it other than the comments that she made. 

(iii)  The relevance of the appellant being tired during the VRI

105.  We fail to see how this could be a ground of appeal. 

106.  The judge in her summing-up to the jury said:

“Mr Shaw has asked you to note that the defendant seemed to be very tired when you watched the video recorded interview. But you will recall that PW1 asked him if he was fit to conduct a video recorded interview on at least two occasions.”[135]

107.  We are at a loss to understand how this was a material issue at trial when there was no challenge to the admissibility of the VRI and the appellant’s answers were the foundation of the defence case.  Furthermore, it was legitimate for the judge to make the comment that she did based on the evidence, and in respect of defence counsel’s suggestion that the appellant appeared tired during the interview. 

108.  We note that in any event the judge reminded the jury that the appellant gave an immediate and spontaneous response upon arrest that he knew of the presence of the drugs but that they belonged to Tang.

(iv)  The substantial value of the drugs and other matters

109.  The judge mentioned to the jury that the prosecution invited them to consider that the appellant had access and keys to the premises at a time when Tang had $4.4 million worth of cocaine in the bedroom where the appellant was sleeping.[136] Mr Cheung complains that the judge did not mention the countervailing argument by defence counsel that the jury could not draw an inference that the appellant was a party to the trafficking of the drugs based only on the fact that he was a roommate of Tang.[137] 

110.  The judge repeatedly mentioned to the jury the defence case that the appellant was merely present in the unit when Tang brought the drugs back there.  More importantly, the judge also reminded the jury that they could not convict the appellant unless they were sure that he knowingly possessed the dangerous drugs in the unit for the purpose of trafficking in them.[138] She reminded the jury that as the appellant faced a joint charge together with Tang, they had to be satisfied that both of them had knowledge of and control over the drugs in the unit and were in possession of them for the purpose of trafficking in those drugs.[139]  She specifically mentioned that the appellant had explained he was present and knew there was cocaine in the unit but that he had nothing to do with the drugs.  She explained to the jury that “mere presence” at the scene of a crime is not enough to prove guilt and that they had to find the appellant was in possession of the drugs and intended to deal with them for the purposes of trafficking in them.[140]

111.  Other points are made about the judge’s failure to mention what are described as “salient features” of the defence case, but we are of the view that these matters were of little or no significance. 

112.  The first matter is that the appellant used his own registered telephone which showed that the appellant did not actively conceal his identity.  We fail to see how this can be described as an error affecting the result of the conviction against the appellant.  The jury would have been well aware of the evidence on this subject.  Defence counsel made reference to the appellant’s Samsung telephone and submitted to the jury in his closing speech, “do you think a drug trafficker would be bold enough to use his own phone doing all those -- making all those transaction inquiries?”[141] He referred to the answer given by the appellant in his VRI where the appellant also acknowledged that he had a China Mobile phone card which had not been activated and was given to him by Tang because he told Tang that he did not have a phone card.  He also said that he had a Nokia telephone which was left on the table because the stored value card had run out of money.[142] 

113.  The second matter is that there was no special reason for keeping the appellant inside the unit for so many hours without a satisfactory explanation.  It is submitted that this could have supported the contention that the police were not telling the whole truth.  We simply fail to see any significance in this point.  The police gave evidence as to the chronological sequence of the events that took place on the day.  The transcript references provided by the appellant do not support this submission.[143]

114.  The third matter is that the appellant could identify the police officers (PW3 and PW8)  that he claimed assaulted him even though they both testified that they were in Unit B for a very short period of time in the course of the arrest.  The police officers denied that they assaulted the appellant, although they struggled with him when he resisted arrest.[144] We again fail to see the significance of this matter.

115.  The criticism that the judge “brushed off” the defence counter arguments and “downplayed” the defence submissions is totally devoid of merit and should never have been made.  Mr Cheung supported his argument by reference to defence counsel’s submission that two police officers (PW1 and PW2)  had given different versions of the opening of the gate and the arrest, and whether the appellant and PW1 fell to the ground; and PW1, PW2 and PW8 could not recall whether they had worn gloves before entering the unit.  He argues that the judge improperly mentioned to the jury after referring to these and other matters:

“You should consider whether these matters, which happened a long time ago, are important or material or go to the issue. You may consider the arrest must have been chaotic and it happened very fast. So perhaps it is not surprising the accounts are not exactly the same. Or do you think there has been a fabrication of evidence.”[145]

116.  There was absolutely nothing inappropriate about the judge’s comments in the circumstances of this case, particularly when taking into account her summing-up as a whole.  In our view, the evidence was appropriately summarised and the relevant matters and issues were placed before the jury for their consideration, with the defence case fairly presented to the jury.  As we have already noted, the judge reminded the jury that they were free to reject any view that she might express on the evidence unless it accorded with their own view of the evidence.[146] 

Proviso

117.  In our judgment, prosecuting counsel’s remarks, which were repeated by the judge in her directions to the jury, constituted a material irregularity.  However, we apply the proviso as we are satisfied that no miscarriage of justice has actually occurred and dismiss the appeal.

118.  The test for determining this issue has been formulated as “… whether a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.  …  The reasonable jury is a hypothetical jury, not the jury that convicted the appellant.”[147] For the purpose of the test the appellate court must assume a reasonable jury and must then ask whether such a reasonable jury hearing only the admissible evidence would if properly directed have failed to convict.[148]  The Court of Final Appeal in Yuen Kwai Choi v HKSAR[149] held that while the test anticipated the view of a hypothetical reasonable jury, the view of the jury which had tried the case must be a factor, albeit not conclusive, to be taken into account in considering what the view of the hypothetical reasonable jury would be. 

119.  Bokhary PJ (as he then was)  in Vivien Fan v HKSAR,[150] framed the test by posing the following question: “Would a reasonable and properly or self-instructed tribunal of fact, acting on the evidence properly to be placed before or received by it, with nothing wrongly excluded or wrongly admitted, inevitably convict?”  He further explained that the proviso applies where it is clear that the error was harmless because the conviction was inevitable.

120.  In applying this test the court will look to see whether the error of law or material irregularity may have affected the outcome of the trial.  In other words, we are required to consider how a reasonable jury would have decided the case if it was properly directed and if the impugned remarks were not made.[151] As explained by McWalters JA in HKSAR v Lam Hing Chit,[152] any regularity “is not to be judged in a factual vacuum but rather within the overall circumstances of the case, having due regard to the evidence and the likely effect, assessed realistically, on the jury’s reasoning in reaching their verdict.”

121.  The issue at trial as identified by the judge was whether the appellant was merely present at the scene of the crime or in possession of the drugs which he intended to deal with for the purposes of trafficking in them.[153]

122.  In our view the evidence against the appellant was overwhelming.  He was staying, or at least present, at Tang’s unit when the police raided the premises and found a large quantity of cocaine and related paraphernalia for the manufacture of crack cocaine.  Tang was in the process of making crack cocaine at the time of the raid.  The appellant acknowledged in his VRI that he knew the drugs and related paraphernalia were present in the unit and that Tang was cooking crack cocaine.  According to the appellant, the extent to which he was involved with the drugs and related paraphernalia was that he saw Tang bring the drugs back to the unit and saw him cooking the crack cocaine.  He claimed he had nothing to do with the drugs and related paraphernalia, implying he had not touched them.  However, his fingerprint was found on the large scale and his DNA on the ziplock part of one of the plastic bags containing the drugs. 

123.  Unit B was a small unit consisting of a kitchen and an open area with a separate bathroom and bedroom.[154]  The unit was sealed in that the curtains were fully drawn and the window above the kitchen was covered in black plastic sheeting.  Except for the items that Tang was using when he was cooking the drugs in the kitchen, the bags of cocaine and crack cocaine and related paraphernalia were found on or under the table in the bedroom where the appellant claimed he was sleeping.  Under the table was the brown carton box containing 5 plastic bags of cocaine.[155] On the table were 2 plastic bags containing crack cocaine (one was exhibit P7, which had the appellant’s DNA on it), one plastic bag containing 4 plastic bags containing crack cocaine, one plastic bag containing 54 small plastic bags containing crack cocaine, and one small plastic bag containing crack cocaine as well as an array of numerous plastic bags, 2 electronic scales, one large (exhibit P15, which had on it the appellant’s thumbprint)  and one small, and other related items.[156]  The 2 electronic scales had traces of cocaine on them.[157]  The appellant stated in his VRI that he had seen the large electronic scale on the table earlier but had no impression of the smaller one.  He had not noticed the ziplock bags.[158] 

124.  When the appellant was arrested, he was wearing a cross-shoulder bag, even though he claimed he was sleeping, which contained the two sets of keys, several telephones, an unopened Sim card and a large sum of cash.

125.  In the statements made by the appellant upon his arrest, which were not in dispute, he said that the carton box inside the room (which contained the 5 plastic bags of cocaine)  and the plastic bags of crack cocaine on top of the table belonged to Tang.  He also said that the soda powder, the induction cooker and the pot were used by Tang to heat cocaine for manufacturing a dangerous drug.  On his own admission, the appellant knew of the nature and location of the drugs and related paraphernalia, and of the process and equipment used by Tang to make crack cocaine. 

126.  Since the impugned remarks only relate to one aspect of the evidence relied on by the prosecution, that is, the appellant’s reason (or the lack of it)  for being present in the premises, which presence was not in dispute, we are satisfied that the appellant would not have lost the opportunity of an acquittal even if the impugned remarks had not been made.[159]  Accordingly, in the circumstances of this case a reasonable jury, properly directed, would inevitably have come to the same conclusion that he was guilty of the charge.

Conclusion

127.  For the reasons we have given, we find there is merit in the first ground but we would invoke the proviso and dismiss the appeal on this ground.  We are not satisfied that the second ground has merit and the application for leave to appeal on this ground is refused.  The appeal is accordingly dismissed.