HKSAR v. TSE HIN-YEUNG

CACC 200/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 200 OF 2014

(ON APPEAL FROM HCCC NO. 59 OF 2014)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.The applicant sought leave to appeal out of time against his conviction, after trial before Deputy High Court Judge Tallentire and a jury on 16 May 2014, of one count of unlawfully trafficking in a dangerous drug, namely 1.46 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 3) and the sentence of 16 years’ imprisonment imposed in consequence. At the hearing, the applicant, who appeared in person in respect of sentence, withdrew his application for leave to appeal against sentence. We allowed the application for leave to appeal against conviction, quashed the conviction and ordered that the applicant be retried on a fresh indictment on the same count. We said that we would give our reasons in due course. That we do now.

2.The delay of 25 months in bringing on the hearing of the applicant’s applications is extraordinary. The applicant gave notice of his applications by filing Form XI with the court on 12 June 2014. The application for the grant of legal aid was made at the same time. It was refused after consideration of “…all the circumstances of the case including the merits of the appeal” on 4 September 2014. Thereafter, on no less than five occasions, hearings before the Chief Judge of the High Court were vacated or adjourned so that the applicant could seek legal representation, primarily from the Hong Kong Bar Association’s Free Legal Service Scheme. Much of the delay appears to have been caused by the applicant’s failure to supply the Scheme with the Appeal Bundle. On 15 June 2016, he was granted legal aid to be represented in this hearing. For the reasons set out in this judgment, the belated grant of legal aid was fully justified, but the earlier refusal regrettable.

The facts

3. At around 6 p.m. on 20 August 2013, four police officers were on patrol at Tai Wai Town Centre.  PC 54218 (PW1) observed the applicant carrying a black re-cycle bag.  The applicant entered the Tang Palace dessert shop at 61, Chik Shun Street, and sat at a table, placing the bag on a chair.  PC 54218 and PC 5905 (PW2) also entered the premises.  A short time later the applicant was joined at the table by a female, Ms Chan.  PC 7157 (PW3) and a Sergeant joined the other two officers in the premises and all four officers went up to the table at which the applicant and Ms Chan were seated.  PC 54218 identified himself as a police officer and showed the applicant his warrant card asking the applicant and Ms Chan to produce their identity cards.  They complied, but only after the officer had repeated his request.  PC 54218 asked the applicant what was in the black bag.  Only after the officer had repeated that enquiry did the applicant respond saying “It’s K Chai”.  PC 54218 arrested and cautioned the applicant for trafficking in dangerous drugs, in reply to which the applicant said “It has nothing to do with the girl.  I collected the goods for others just for the reward of $1,500.”

4. Inside the bag was a cardboard carton box bearing the label ‘Carlsberg’, which was taped up.  Inside it were eight carton boxes of what was labelled as milk.  Each of those carton boxes was found to contain a plastic re-sealable bag, which in turn contained the ketamine the subject of the count on the indictment.

5. PC 54218 testified that, having taken the applicant to Tin Sum Police Station, at 6:48 p.m. he made a written post-record in his notebook of the events at the Tang Palace dessert shop, which record he read to the applicant, after which the applicant read it himself and signed, having written out a declaration, inter-alia, that the statement was true.

6. DPC 2686 testified that he had conducted a video record of interview under caution of the applicant between 13:20 and 14:00 hours on 21 August 2013.  Having reminded the applicant of the circumstances of his arrest and his response after being cautioned for trafficking in dangerous drugs, as described by PC 54218, the applicant said that he thought that drugs were ‘K Chai’. The applicant explained that, in a telephone conversation on 19 August 2013, he had agreed to collect and deliver some goods for a man he knew as ‘Driver.’  As a result, he had received the black bag and its contents shortly after 11 a.m. outside the Jockey Club near the Sheung Shui MTR station.  He said that he had been told to be careful with the bag because it contained dangerous drugs.[1]  The applicant agreed to wait to be contacted by telephone by the ‘Driver’ to be informed about the delivery of the goods, although he was told that delivery would be made in the vicinity of Tai Wai.  The applicant said that he noticed that the Carlsberg carton box contained carton boxes of milk, but said that he took no further interest in the contents.

7. The applicant said that he had come to Tai Wai at about 5 p.m. having arranged to meet Ms Chan there to provide him with “cover.”  She did not know that he had dangerous drugs in his possession.

8. It was an admitted fact that a fingerprint of the applicant was found on a milk carton inside the Carlsberg beer carton and that the retail value of the drugs was around $234,240.

The defence case

9. The applicant testified in his defence.  He said that he was unaware that the bag, which he accepted was in his possession, contained dangerous drugs.  On 20 August 2013, he had met up with two men at different locations in the New Territories in order to borrow money to pay for his son’s kindergarten fees.  Then, he went to Tai Wai to meet Ms Chan to assist her with directions in finding a place with which she was unfamiliar.  They met near a petrol station between 5 p.m. and 6 p.m.  Ms Chan was carrying a black bag with something inside.  Ms Chan wanted to eat something, but said that first she had to go to an ATM.  So, she left the black bag with the applicant. He waited for her in a park.  Whilst he was doing so, she telephoned him and asked him to check if there were eight packs of drink in the bag.  The applicant said that he did so, by breaking the seal on the ‘Carlsberg’ carton box, after which he was able to see the milk cartons.  In counting them he brushed his fingers over them, and confirmed to Ms Chan that there were eight packs.  Then, they agreed to meet at the dessert shop. 

10. The applicant agreed that shortly after he sat down with Ms Chan in the dessert shop, four plain-clothed officers came up to him.  He was asked for his identity card, which he gave the officers after they showed him their police warrant cards .  He replied in the affirmative, having been asked if the bag was his or theirs.  When asked what was in the bag, the applicant said it contained milk.  One of the officers asked “What if it’s not milk?”  The applicant replied “I think that shouldn’t be the case.”  Then another officer opened a carton of milk, revealing the presence of a bag of white powder.  When asked what it was, the applicant said “I don’t know.”  The officer replied “You don’t know? Obviously it’s dangerous drugs.  You think for yourself?”  In the result, the applicant said “I think it is K Chai.”

11. Having been told that he would be arrested, the applicant protested that the dangerous drugs were not his, rather they belonged to the girl.  He was told “No need to explain that much, just save it for the police station.  We saw you take the bag here.  You have a very good idea of that and one should take responsibility for what one has done.”  The applicant was told that CCTV would reveal that he had taken the bag into the restaurant and that he should not draw his friend into the matter.  In anger and frustration, given that the police officers would not listen to his account, the applicant said that he told them that it had nothing to do with the girl.

12. The applicant testified that he had signed the entry in the police officer’s notebook, because that officer told him that he would only make arrangements for him to go to hospital to receive an injection of insulin after the statement was made.  In the face of the applicant’s denials that the dangerous drugs were his and his assertion that they belonged to the girl, the officer told him that there was no use in saying that because CCTV showed him bringing the bag into the restaurant.  It was an admitted fact that at about 2 a.m. on 21 August 2013 the applicant was taken to Princess of Wales Hospital for medical treatment.

13. The applicant said that, prior to the making of the video record of interview, he had been taken to the toilet by one of the officers, who told him to repeat what was in the notebook and rehearsed with him what he was to say.  He said that he participated in the video record of interview out of fear that he might be hit and not provided with an injection of insulin.  The applicant said that the account that he had given them the video record of interview was not true.

Grounds of appeal against conviction

14. In the grounds of appeal against conviction, filed with the court on 16 June 2016, Mr HY Wong submitted that the judge had erred in failing to direct the jury in the terms of Specimen Direction 39.1, of the Judicial Institute’s ‘Specimen Directions in Jury Trials’, namely that if the jury was satisfied that the applicant’s evidence of the circumstances of oppression in which he had come to make the out-of-court statements relied on by the prosecution at the time of his arrest, the making of the post record and the video record of interview was or might be true, then the jury must disregard those statements.

15. Secondly, it was submitted that the judge had erred in failing to give the jury a direction in terms of Specimen Direction 44 A.1, namely that if the applicant’s testimony “is or may be true, then the defendant must be acquitted.”

The submissions of the respondent

16. In his written submissions filed with the court on 7 June 2016, in advance of the filing of any perfected grounds of appeal by Mr HY Wong, most properly, and consistent with his duties to the court, Mr Sean had drawn the attention of the court to the two matters which are now the subject of grounds of appeal against conviction advanced on behalf of the applicant.  He invited this court to consider whether or not the judge’s failure to give those directions constituted material irregularities in the trial.  He suggested that, if the court made such a determination, then the issue of the application of the proviso would arise.  In his oral submissions, Mr Sean acknowledged that it would not be appropriate for this court to apply the proviso.

A consideration of the submissions

17. At the outset of his summing up the judge summarised the prosecution case.  First, the applicant had been found in possession of the bag, which was found to contain the dangerous drugs.  Secondly, the applicant had nodded affirmatively when asked if the bag was his.  Then, having been arrested and cautioned for trafficking in dangerous drugs, the applicant said “Ah Sir, it had nothing to do with the girl.  I collected the goods for others, for a reward of $1,500.”  Of the applicant’s admissions, the judge reminded the jury:[2]

“ PW1 post-recorded a statement of the defendant’s alleged admissions, which he signed. The dangerous drugs were found to be 1.92 kilogrammes of powder containing 1.46 kilogrammes of ketamine. These admissions were repeated in a video recorded interview. You have seen that interview, you have a transcript in your bundle.”

18. Of the defence case, the judge said:[3]

“ The defence case on the other hand is that the alleged admissions were either manufactured by the police or as a result of threats of violence or the threat of violence; that the defendant signed the post-record because the police were threatening to withhold medical attention for his diabetes until he did so; the video recorded interview was a result of being coached by PW4 and a perception on the defendant’s part, both of violence and again the withholding of medical attention.

 The defence case is that in fact the dangerous drugs and the bag had been possessed by the female, passed over to him for reasons which he gave in his evidence and he carried them into the restaurant unaware of the contents, that, indeed, by implication and by fact that it was the female who was the person who was trafficking in dangerous drugs if anyone was.”

19. Having summarised the evidence led in both the prosecution and defence cases, the judge said:[4]

“ I am going to give you some directions on the alleged confessions in the post-recorded statement and the video recorded interview.

The defendant’s position on P14 (post-recorded notebook entry) and P33 (the video record of interview) and also the oral evidence of what occurred at the scene of arrest, which was given by PW1 and corroborated to some extent by PW2, is that there are major inaccuracies in respect of P14 and the oral admissions and that the video recorded interview, P133(sic), is made up; this arises from coaching and fear on the defendant’s part.

  The prosecution assert that P14, the oral evidence is accurate and true and that P33 is true.  The defendant’s position is that the contents are not true.  You must decide, taking into consideration all the evidence by the prosecution and defence.  If you conclude that you are not satisfied beyond all reasonable doubt that the confessions are true, then you must disregard them.  However, if you are satisfied beyond all reasonable doubt that they are true, then you may rely upon them.  Consider them carefully, consider what the defendant has said, consider the whole of the evidence before coming to that conclusion.”

20. Specimen Direction 39 addresses the situation obtaining in the applicant’s case, namely the approach to be taken by the jury to their consideration of the out-of-court statements attributed to a defendant, where there is an issue as to the circumstances in which the admissions were made, in particular whether or not the defendant was subject to oppression, violence, threats or inducements:

“ In deciding whether you can safely reply upon the admissions, you must decide two issues :

1. Did the defendant in fact make the admissions? If you are not sure that he did, you must ignore them. If however you are sure he did, then :

2. Are you sure that the admissions are true? In addressing that issue (whether the admissions / answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable]. If you conclude that the admissions / answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions / answers.

In this case, the defendant alleges that (summarise the allegation).  If you conclude that that allegation is or may be correct and that the admissions / answers were or may have been obtained as a result of that conduct, then you must disregard the admissions / answers.”

21. As is apparent from such directions as the judge gave the jury, he did not direct the jury that if the applicant’s out-of-court statements “were or may have been obtained” as a result of oppression etc that “you must disregard” them.  That he did not do so is, with respect, very difficult to understand.  It was the crucial issue in the case.  Just as surprising, is the fact that neither counsel, Mr Ian Polson for the prosecution and Mr Chan Gee Ming, Kenneth for the defendant, raised with the judge his failure to give that necessary direction.  Moreover, as is the general practice, at the conclusion of his summing up, in the absence of the jury, the judge afforded counsel an opportunity to raise with him any concerns they had as to the summing up.  They raised none.  Counsel for the prosecution had a duty to raise errors of law in the summing up with the judge.  Although counsel for the applicant may not have such a duty[5], one would have expected a matter that was highly relevant to the defence to have been raised with the judge.[6]

22. The note to that Specimen Direction makes it clear that the last two paragraphs of the directions was a departure from previous directions, made in order to reflect the earlier approach articulated in the advice of the Privy Council in Wizard the Queen,[7] endorsed in R v Mushtaq,[8] which disapproved of the approach taken in Chan Wei Keung v The Queen [9].  That update was made in 2009.

23. However, it was not until 2014 that the Court of Final Appeal in HKSAR v Pang Hiu San [10] endorsed that as the correct approach.  In doing so, it cited with approval the judgment of this court in HKSAR v Ho Wing To [11].  In the former judgment, the issue of the appropriate direction to be given to the jury, was addressed:[12]

“ The answer provided by a majority of the House of Lords in R v Mushtaq and subsequent decisions of the Privy Council, was that the judge must direct the jury as to voluntariness where the circumstances of the case suggest that the confession was, or may have been, induced by oppression and, if they conclude that the confession may have been obtained as the result of oppression they must disregard it.  This is commonly called the Mushtaq direction.  In July 2009, the Hong Kong Judicial Institute (“Judicial Institute”) issued new specimen directions[13] based on the Mushtaq direction.  In HKSAR v Ho Wing To (No 2) [2012] 1 HKLRD 1023, the Court of Appeal adopted the Mushtaq direction, although it recognized that Chan Wei Keung v R [1967] 2 AC 160, a decision of the Privy Council on appeal from Hong Kong, was to the opposite effect.[14] ”

24. In the event, the Court of Final Appeal determined:[15]

“ We have considered the relevant authorities and are of the opinion that a Mushtaq direction is required in Hong Kong where the circumstances suggest that the statement was, or may have been, induced by oppression, including cases where the defendant denied making the confession.”

25. Of the direction to be given to a jury in Hong Kong, the Court of Final Appeal said:[16]

“ In our opinion, Chan Wei Keung should no longer be followed in Hong Kong and the common law is as stated in Mushtaq and Wizzard. It follows that in our respectful view the Court of Appeal in Ho Wing To (No 2) and the Judicial Institute were right in adopting the Mushtaq direction.”

26. In HKSAR v Ho Wing To this court determined that there was no error in the judge’s directions to the jury as to their approach to the out-of-court statements of the defendant.  In the judgment of Cheung JA, with whom the other judges agreed, the judge’s approach to the issue in his summing up was summarised as including:[17]

“ (5)…in this case the allegations of impropriety made by the accused against the police include allegations of impropriety of a very serious nature indeed such as assaults, threats and inducements.

(6) If a jury is unsure that any admission was made in circumstances free from those improprieties of that nature, then it should give that admission no weight. If, on the other hand, a jury is sure that an admission was made in circumstances free from impropriety of that nature, then it may act on such admission.

(7) If you think that any of these serious allegations by the accused are or may be true, then you should attach no weight to any admission in the statement.”

27. Of those directions, Cheung JA said:[18]

“ While the exact wording of the UK Standard Direction was not adopted in the present case, I do not consider it is necessary for the Judge to follow the UK Direction word by word and to direct the jury specifically that if they think the confession was or might have been obtained improperly they must disregard it even if they think that it was true or might have been true. It is clear from the directions given by the Judge, the central theme that was impressed on the jury was that they could only act on the admissions if they are satisfied that they were made in circumstances free from impropriety. This was the pre-condition for them to consider the admissions.” [Italics added.]

Conclusion

28. We are satisfied that the judge’s failure to give the jury direction as to their approach to the use of the applicant’s out-of-court statements, having regard to the issue of the circumstances of impropriety in which he testified that they were obtained was a material irregularity in the trial.

Ground 2

29. The crux of the defence case was identified by the judge as being that:[19]

“ …the dangerous drugs and the bag had been possessed by the female, passed over to him for reasons which he gave in his evidence and he carried them into the restaurant unaware of the contents, that, indeed, by implication and by fact that it was the female who was the person who was trafficking in dangerous drugs if anyone was.”

30. Subsequently, in his summary of the evidential points to which the judge invited the jury to have regard, the judge said:[20]

“ (13) The defendant gave evidence that he met the girl, Chan, in Tai Wai outside a petrol. He alleged that it was she who left him with the black bag when she went to the ATM. After leaving him she phoned and asked him to check the milk cartons, this caused him to touch them and this is how his fingerprint came to be on one of the cartons.

(14) He did carry the bag to the Tang Palace, but the girl was already there when he arrived.”

31. Earlier, the judge had given the jury the standard direction in respect of the burden of proof:[21]

“ As in all criminal cases, the prosecution must prove the defendant is guilty as charged if there is to be a conviction. The defendant does not have to prove his innocence. To repeat and to underline, in a criminal trial, the burden of proving the defendant’s guilt is always on the prosecution.”

32. Finally, the judge said of the applicant’s evidence:[22]

“ …even if you reject and disbelieve the evidence of the defendant - and I say if you do so - you still have to examine carefully the prosecution’s case to see if it amounts to proving the case beyond all reasonable doubt before you consider convicting. If you put aside all the defendant says, the prosecution case must make you sure of the defendant’s guilt before you can convict and that, as I said, is only if you disbelieve the defendant.”

33. That direction resonated in part with the fourth and final paragraph of Specimen Direction 44 A.1.  However, the earlier paragraphs of that direction found no place in the judge’s summing up.  They state:

“ The defendant has chosen to give evidence [and to call witnesses]. The defendant was not obliged to give evidence. He was not obliged to call any witnesses. He does not have to prove his innocence. He does not have to prove anything.

However, he has chosen to give evidence [and to call witnesses on his behalf]. You must take what he [and his witnesses] has / have said into account when considering the issues of fact which you have to determine.

It is for you to decide whether you believe the evidence of the defendant [and /or his witnesses] or whether it may be true. I have previously told you that if the account given by the defendant / put forward by the defence is or may be true, then the defendant must be acquitted.” [Italics added.]

34. The third paragraph of those directions was apposite in the case of the applicant.  If the crux of his defence, namely that he did not know that the bag contained dangerous drugs, is or may be true the applicant must be acquitted.  The jury was never given a direction in those terms.

35. In Sze Kwan Lung v HKSAR[23] the issue of the proper direction to be given to a jury in their approach to defence evidence was addressed.  In his judgment, with which all the other judges agreed, Bokhary PJ cited with approval [24] the statement of Brennan J in the High Court of Australia in Liberato v R [25], namely that:

“ [t]he jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

Bokhary PJ concluded, “Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.”

36. Clearly, the judge failed to give that direction, either in the words of the Specimen Direction or at all.  He was required to do so.  The appellant’s denial in testimony that he was aware of the presence of dangerous drugs in the bag was a crucial part of the defence case.  If the jury accepted that his evidence was or might be true, then he was to be acquitted.  The judge’s failure to give the direction was a material irregularity.

Conclusion

37. For the reasons set out, we were satisfied that there were two material irregularities in the trial.  Each of them went to the heart of the defence case.  With respect, Mr Sean was correct to acknowledge that it was not appropriate to consider applying the proviso.  In the result, we allowed the application for leave to appeal and quashed the applicant’s conviction.

Retrial

38. Sensibly, Mr Wong did not resist the respondent’s application for a retrial.  We were satisfied that it is appropriate to order a retrial on the same count, which order we made.  Also, we ordered that a fresh indictment be filed with the court within 14 days and the matter be brought before the Listing Judge for the fixing of trial dates within 28 days hereof.  We ordered that the applicant be remanded in custody pending his retrial.

[1] Appeal Bundle; page 102, counter # 162.

[2] Appeal Bundle, pages 9 - 10 A.

[3] Appeal Bundle, page 10 C-K.

[4] Appeal Bundle, pages 20 - 21 C.

[5] Archbold Hong Kong 2016, 4-218.

[6] ‘The Code of Conduct’ of the Hong Kong Bar Association, paragraph 154.

“If some procedural irregularity comes to the knowledge of Defence Counsel before the verdict is returned, he should inform the Court as soon as practicable and should not wait with a view to raising the matter later on appeal.  Defence Counsel is not under any duty to draw matters of fact or law to the attention of the Court at the conclusion of the summing-up, but he may do so if he believes it would be to the advantage of his client.”

See R v Leung Chi Yuen [1989] 12 HKC 24, at pages 37 H - 38 I.

[7] Wizard the Queen [2007] UKPC 21.

[8] R v Mushtaq [2005] 1 WLR 1513.

[9] Chan Wei Keung v R [1967] 2 AC 160.

[10] HKSAR v Pang Hiu San [2014] 17 HKCFAR 545.

[11] HKSAR v Ho Wing To (No. 2) [2012] 1 HKLRD 1023.

[12] HKSAR v Pang Hiu San, paragraph 4.

[13] The relevant specimen direction, reads: “In this case, the defendant alleges that (summarise the allegation).  If you conclude that that allegation is or may be correct and that the admissions/answers were or may have been obtained as a result of that conduct, then you must disregard the admissions/answers.”

[14] In Wizzard v The Queen [2007]LRC 457, Lord Phillips of Worth Matravers, delivering the decision of the Privy Council on appeal from Jamaica, described Chan Wei Keung as “a false step in the development of the common law” and said “Mushtaq has re-established the correct approach”.

[15] HKSAR v Pang Hiu San, paragraph 5.

[16] HKSAR v Pang Hiu San, paragraph 54.

[17] HKSAR v Ho Wing To (No 2), paragraph 59(5)-(7).

[18] HKSAR v Ho Wing To (No 2), paragraph 62.

[19] Appeal Bundle, page 10 H-K.

[20] Appeal Bundle, page 23 L-P.

[21] Appeal Bundle, page 14 A-D.

[22] Appeal Bundle, page 24 D-H.

[23] Sze Kwan Lung v HKSAR [2004] 3 HKLRD 328.

[24] Sze Kwan Lung v HKSAR,page 337 G-I.

[25] Liberato v R (1985) 159 CLR 507.