HKSAR v. CHOW HO YIN

CACC 116/2018

[2019] HKCA 248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 116 OF 2018

(ON APPEAL FROM HCCC NO 216/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1. The applicant faced a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on 21 August 2016 at Cheung Wah Estate, Fanling, the applicant unlawfully trafficked in 42.51 grammes of a crystalline solid containing 41.31 grammes of methamphetamine hydrochloride (commonly known as “Ice”).

2. He pleaded not guilty to this charge but on 27 February 2018, after a trial before Campbell-Moffat J (“the judge”) and a jury in the Court of First Instance, he was convicted by the verdict of the jury.  On 18 April 2018, he was sentenced to 8 years and 6 months’ imprisonment.

3. On 25 April 2018, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction. 

4. At the hearing of his application we refused it and dismissed his appeal and said we would hand down our reasons for doing so at a later date.  These are our reasons.

Procedural history

5. In order to understand the applicant’s complaints it is necessary to have some knowledge of the events leading up to his trial.

6. The applicant’s case was listed on the February 2018 Expedited List for trial.  Prior to that a Case Management Hearing (“CMH”) was held on 21 November 2017 at which the applicant’s trial counsel and the prosecutor prepared and filed Case Management Questionnaires.

7. In the Defence Questionnaire the applicant’s counsel stated that the applicant would challenge the admissibility of both the post record of the applicant’s response to first being cautioned and his Video Record of Interview (“VRI”) and particulars of the defence case were provided in response to item 4(ii) of the Questionnaire.  This item required the applicant’s counsel to “provide a list summarising all the issues under dispute by the defence” and the applicant’s counsel answered it by saying:

“(i) The dangerous drugs in question were not in Defendant’s possession at all material time;

(ii) The Defendant did not have knowledge of the dangerous drugs in question at all material time;

(iii) The Defendant was induced to admit possessing the dangerous drugs in question;

(iv) The said inducements were about 1) the Defendant would only be charged with possessing the dangerous drugs in question and 2) the female friend of the Defendant would be released; and

(v) The particulars that the Defendant uttered in the Video Record Interview were coached by the Police Officers.” (emphasis added)

8. The Prosecution’s Questionnaire was not clear on whether the prosecution would be relying on the applicant’s response to caution and his VRI.  In item 5(xi) of the Questionnaire the prosecutor was required to indicate if there was any challenge to the admissibility of any evidence.  He responded by saying:

“No. But it may be that the Prosecution may not wish to adduce evidence of the caution statements in the context that D alleges a total ‘frame up’ and yet he may claim to have told the ‘truth’ on the issue of ‘self-consumption’ even [though] under police oppression. In this case, the trial will be shortened as there will be no voir dire.”

9. At the CMH the prosecutor indicated unequivocally that the prosecution would not seek to produce in evidence the applicant’s response to caution and the VRI and the prosecution case would consist of two police officer witnesses whose evidence should only take 2 days.  Allowing for a defence case, speeches and summing-up the prosecutor estimated the trial should take no more than 6 days.[1]

10. A Notice of Trial dated 26 January 2018 fixed the case to commence on 9 February 2018.  Fiat counsel was engaged on 6 February 2018 to prosecute this case and he decided he would seek to adduce into evidence the applicant’s response to caution and VRI.  He informed the applicant’s counsel of his decision on the same date, that is, 6 February.

11. In a letter to the judge dated 8 February 2018, the applicant’s counsel stated that he was only informed by the fiat counsel on 6 February 2018 that the prosecution would now rely on the cautioned statements and applied for more time to take further instructions from the applicanton the special issue. In a letter dated 8 February 2018, the judge refused the application.

12. On Friday, 9 February 2018, before the voir dire hearing took place, there were exchanges between the judge and the parties regarding the prosecution’s change of position in respect of the applicant’s response to caution and his VRI and the applicant’s counsel’s need for more time to prepare for the voir dire. The applicant’s counsel asked for 2 hours but was granted only 30 minutes.  In the end he received one hour but it transpired that most of this time was spent by him persuading his upset client not to sack him.  The applicant’s counsel then applied to adjourn the case to the following Monday as his client was experiencing difficulty in remembering all the details of the circumstances surrounding his arrest, search and interview and so could not provide full instructions.  This application was refused but the judge did adjourn the commencement of the voir dire to 2:30 pm that day.  As the court rose at 11:21 am this gave the applicant’s counsel 3 hours to consult with the applicant and to prepare himself.

13. At 2:30 pm the applicant’s counsel informed the judge:

“The defence is ready for the voir dire hearing, particularly PW1, Your Ladyship.”[2]

14. The applicant’s counsel then informed the judge of the applicant’s objections to the response to caution and the VRI. 

The voir dire

15. Six police officers gave evidence on the voir dire, as did the applicant.  The prosecution called one witness only on 9 February and he was still under cross-examination when the court adjourned at the end of that day.  This was a Friday and so the applicant and his counsel had the whole weekend before the voir dire resumed.  The applicant did not have to testify until mid-afternoon of the following Tuesday 13 February 2018. 

16. The applicant testified that the police had induced him into admitting possession of the Ice, which in fact belonged to Miss Chan and were found on her body.  The police, he claimed, wanted to help Miss Chan as she had been arrested the previous evening and been placed on police bail.  It was feared that her bail would be at risk if she was again arrested.

17. The applicant alleged that PW1 told him that there were about “20 to 30 grammes” of Ice only, and the police would only charge him with simple possession and would then release him on bail.

18. In respect of the admissions made upon arrest and in the VRI, the applicant said he was coached by the officers with the contents of the notebook, and with what he said in the VRI.

19. The judge accepted the evidence of the police officers and rejected the applicant’s evidence whom she found not to be an honest and reliable witness.  She ruled the cautioned statements admissible.

The prosecution case

20. In short, the prosecution case arose from a “stop and search” of the applicant in the street, during which dangerous drugs were found hidden in his underpants.  At the time the applicant was accompanied by a woman, Miss Chan also known as “Ah Pui”.

21. Two police officers in plain clothes were patrolling in the area of Cheung Wah Estate. It was their evidence that the applicant was seen by them to be acting suspiciously by looking around nervously and walking in haste in an awkward manner.  More specifically, the applicant was seen holding his hands in front of his crotch area as if he had something concealed under his clothing.

22. This caught the attention of the two officers, who then stopped the applicant, revealed their identities and conducted a preliminary search on him.  A suspicious hard object was “felt” in the applicant’s crotch area.  Together with 3 more officers, who had arrived shortly after as reinforcement, the applicant was taken to a nearby public disabled toilet, which was only a short distance away, where he was searched more thoroughly.  The Ice that is the subject of the charge was found packed in 20 smaller packets which were contained inside 6 larger re‑sealable plastic bags and these were concealed in the applicant’s boxer shorts.

23. The applicant was cautioned by the arresting officer.  In response to the caution he stated that:

(1)  the crystalline substances found on him were Ice;

(2)  he was an Ice user for 7 years, and the Ice in question were bought only for his own consumption;

(3)  he bought them from an acquaintance called “Fei Bun” for HK$5,900; and

(4)  Miss Chan had no knowledge of the drugs found on him.

24. These admissions were contemporaneously recorded in the police notebook of the arresting police officer. Later, at Sheung Shui Police Station, the same officer made a post-record of the earlier events and of the applicant’s admissions at the scene, which the applicant adopted as “true and made of [his] own free will” and duly signed.  

25. In a subsequently conducted VRI, the applicant stated that:

(1)  he purchased the Ice in question and all were for his own consumption;

(2)  he had been an Ice user for 9 years;

(3)  his daily rate of consumption was about 1.75 grammes; 

(4)  he used HK$10,000, instead of HK$5,900, to purchase 56 grammes of Ice from “Fei Bun” at a discount;

(5)  he felt cheated and/or defrauded upon learning that the Ice in question only weighed 47.1 grammes, instead of the 56 grammes that he was originally promised;

(6)  his monthly salary at that time was HK$21,000;

(7)  the Ice in question were found inside the underpants that he was then wearing; and

(8)  Miss Chan had no knowledge of the Ice.

26. At trial, the parties agreed to a set of admitted facts amongst which were the following:

(1)  on 21 August 2016, at about 0300 hours, the applicant was taken to a disabled toilet located at the ground floor of Cheung Lai House, Cheung Wah Estate for a search;

(2)  the prevailing market price of the Ice in question was HK$14,708; and

(3)  the amount of Ice in question would feed an average drug abuser for 137.7 days of use.

The defence case

27. The applicant did not give evidence or call any witness in the defence case at the trial proper.  His case, as advanced by his counsel on his behalf, was in accordance with his testimony on the voir dire.

The applicant’s grounds of appeal against conviction

28. The applicant was unrepresented at the hearing of his appeal and so there were no Perfected Grounds of Appeal filed on his behalf.  However, in his Form XI he made a number of complaints. He also filed with the court a written submission dated 6 December 2018.

29. His first complaint is in respect of the change of position by the prosecution in relation to its use of his cautioned statements shortly before the commencement of the trial, and the judge’s refusal to adjourn the case for his trial counsel to take further instructions in respect of the voir dire hearing.  

30. The applicant also complained of an alleged failure by the judge to clearly point out to the jury that the Ice in question could not possibly be hidden the way the police officers had described in their evidence.  In his written submission he also claimed that the demonstration by the officer of how the Ice was hidden was “inaccurate” and “misleading the jury”, as it was only done “on table” with an “empty plastic bag”.  Finally, he complained of the way the judge conducted the summing-up which deprived him of a fair trial.

The respondent’s submissions

31. In response to the first ground, Mr Andy Lo, for the respondent, submitted that there was no procedural unfairness caused to the applicant.  

32. The trial counsel had stated clearly on the Questionnaire that the admissibility of the cautioned statements would be challenged and from this it is clear that the applicant’s instructions had always been, and remained, that the cautioned statements had been obtained involuntarily. 

33. Regarding the “less than clear” stance taken by the then handling prosecutor at the CMH, Mr Lo submitted that as soon as the fiat counsel was engaged on 6 February 2018, the defence was informed of the intended use of cautioned statements without delay.  All in all, no unfairness had been caused to the applicant.

34. In response to the second ground, Mr Lo submitted that the judge’s summing-up was fair and balanced.  There was simply no evidence coming from the defence to demonstrate how it was inherently impossible to hide the Ice in the applicant’s underpants.

Discussion

The first ground of appeal

35. The applicant’s complaint under this ground was that there was insufficient time for he, and his counsel, to prepare the defence case on the voir dire.

36. It is clear from the Questionnaires prepared and filed by the applicant’s trial counsel that the admissibility of both the post record of the applicant’s response to caution and the VRI would be challenged and that the basis of the challenge would be as set out in instructions that the applicant had provided to his counsel on this issue.  Regardless of what the then handling prosecutor indicated at the CMH, the defence already knew what their stance would be should the prosecution seek to tender the response to caution and the VRI in the prosecution case.  Even if the indication of the prosecutor misled the applicant’s trial counsel at the time, it is difficult to see how that prejudiced the applicant or deprived him of a fair trial.

37. There was nothing improper in fiat counsel taking a different view to that taken by the counsel appearing at the CMH on the use he would make of the response to caution and the VRI.  The only issue is whether the confused stance adopted by the prosecution and the late change of stance in any way prejudiced the applicant. 

38. Although the judge refused the application for an adjournment, both in correspondence before trial and at the hearing on 9 February, as it turned out the applicant’s counsel and the applicant himself had more than enough time to prepare themselves for the conduct of the voir dire and for giving evidence.

39. We can find no unfairness or prejudice to the applicant in the rulings of the judge.  

The second ground of appeal

40. This issue of whether the drugs had been concealed in the applicant’s underpants and how they were discovered by the police officers was placed squarely before the jury for them to consider.  This is apparent from the various references that the judge made to this issue in her summing‑up.  She said:

“… So, either he had it in his underpants or he didn’t have it in his underpants, it is as simple as that. If he did have it in his underpants, he is in possession in law, all right? So that is the first aspect, am I sure he had it in his underpants?”[3]

Further:

“… I think it is fairly clear on this case that the prosecution is saying he has got ‘Ice’ in his underpants and therefore he must know there is ‘Ice’, and of course the defendant is saying, ‘I had nothing. Not a thing. There was nothing hidden in my underpants.’ So it is a fairly simple choice that you have got there. … So it may be that everything sort of stands or falls on [whether he had drug in his underpants], and if you decide he did not have anything in his underpants that night, he did not possess, that is the end of it, yes? End of story.”[4] (Emphasis added.)

She also added:

“…The issue is where [the drug in question] came from in the first place, but having got it, there is no issue at all that it is the same drugs. We just do not know where it came from. Did it come from his underpants? Did it come from Ah Pui? Did it come from somebody totally different according to the defendant? …”[5]

41. In the present case, we are in no doubt that the judge’s summing‑up accurately identified and fairly placed before the jury the issue of which they had to be satisfied, namely whether the Ice was, in fact, found inside the applicant’s underpants as alleged by the prosecution witnesses. 

42. As the jury watched the demonstration of the police officerthey would have been well aware that it was taking place with an empty plastic bag on a flat table.  We are not persuaded that the jury would not have realised that the demonstration was merely for the purpose of showing how the prosecution alleged the drugs were concealed and that in assessing the credibility of this allegation they would still have had to decide whether this method of concealment was physically possible, as denied by the applicant.

Conclusion

43. For these reasons we refused the applicant leave to appeal his conviction and dismissed his appeal. 

Addendum

44. In the course of writing these Reasons for Judgment we have had recourse to the Clerk’s Log in order to address the applicant’s first ground of appeal.  That document revealed that on Monday, 12 February 2018, at 10:02 am the applicant, through his counsel, claimed he was unwell to which the judge responded that the voir dire stage of the trial could continue in his absence as he was represented.  His counsel simply replied that was an option.  The voir dire had commenced on the previous Friday afternoon and the first prosecution witness was still being cross-examined by his counsel. 

45. The judge’s attitude, which remained unchanged thereafter, was, no doubt, influenced by earlier events which she, perhaps, viewed as evidencing an intention of the applicant to obtain an adjournment of the proceedings.  Having unsuccessfully persuaded her to adjourn the proceedings on the basis of the prosecution’s changed stance in respect of the response to caution and the VRI, the judge may have regarded the sudden onset of the applicant’s medical condition with some scepticism.  Whether this explains the robust attitude she adopted is not clear but what is clear is that she wished both the applicant and his counsel to understand that the proceedings would continue. 

46. At 11:06 am the applicant requested for the proceedings to continue in his absence.  The judge permitted this, saying he could be brought back when he felt better.  The applicant then left the courtroom.

47. At 11:29 am the court adjourned for the mid-morning break.  After the mid-morning break his counsel informed the judge that the applicant felt better but would go to see the doctor in the afternoon.  The judge again adopted the same stance as earlier, saying that the proceedings could continue in the absence of the applicant as his counsel already had full instructions.  It would appear that the applicant was then in court and remained in court until the luncheon adjournment.

48. At 1:02 pm just before the court adjourned for lunch the applicant’s counsel informed the judge that the applicant would be seeing a doctor in the afternoon and urged the judge to reconsider whether it was necessary for the applicant to be present.  The judge adhered to her previous ruling saying that as the applicant’s counsel had full instructions there was no prejudice to him by not being present in court.

49. When the court resumed the applicant was absent.  His counsel informed the judge that the applicant had gone back to Lai Chi Kok as he had a dental problem which the medication he had been given was not helping.  The judge said that the proceedings would continue.  The applicant was absent from his trial the whole of the afternoon.

50. When the court resumed the next day the applicant was present and thereafter attended the rest of his trial.

51. By the time we became aware of what had happened in the trial the court’s order dismissing the appeal had been perfected by the issue, on 12 February 2019, of a memorandum under Rule 62(1) of the Criminal Appeal Rules, Cap 221A and, as a consequence, from this date this court became functus officio in respect of the applicant’s appeal.[6]

52. We cannot, therefore, consider the propriety of the manner in which the judge dealt with the applicant’s inability to attend his trial for medical reasons, and her decision to continue his trial in his absence, unless we invoke the residual jurisdiction of the Court of Appeal[7]. Such a jurisdiction was said by the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd [8] to be “a wholly exceptional jurisdiction and the occasions when it may properly be invoked would be extremely rare.”  Invoking this jurisdiction to reopen the applicant’s appeal is not a course of action which appeals to us. 

53. For this reason we deliberately abstain from passing any comment on whether what transpired before the judge affords the applicant a ground of appeal.  We simply draw this to the attention of the applicant so that he may consider his position.  We shall also pass a copy of our judgment to the Director of Legal Aid. 

[1] In order to be eligible for the Court of First Instance Expedited List a case should not have an estimated length of trial exceeding 10 working days.  See paragraph 1.3.3(4) of Practice Direction 9.3. 

[2] Page 23 of the additional transcript.

[3] Appeal Bundle, pages 21 S – 22 B.

[4] Appeal Bundle, page 22 K – O; P – R.

[5] Appeal Bundle, page AB 43 O – R.

[6] See Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498.

[7] This residual jurisdiction is discussed by the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637.  It flows from a decision of the Civil Division of the English Court of Appeal in Taylor v Lawrence [2003]  QB 528 which was applied to the criminal jurisdiction of the Court of Appeal by the Criminal Division of that court in R v Yasain [2016] QB 146.  Taylor v Lawrence has been applied in Hong Kong by the Court of Appeal in its civil jurisdiction – see Dr Leung Shu Piu v The Medical Council of Hong Kong CACV 374/2008, unreported, 28 February 2014 at [10]-[13] and Koon Wing Yee v Financial Secretary [2013] 1 HKLRD 76 at 85-87, [21]-[27].

[8] HKSAR v Tin’s Label Factory Ltd (2008) 11 HKCFAR 637 at 655I.