HKSAR v. AU KWAI SUN

CACC 350/2019

[2021] HKCA 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 350 OF 2019

(ON APPEAL FROM HCCC NO 251 OF 2019)

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J U D G M E N T

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Introduction

1.  On 27 November 2019 the applicant was convicted after trial before Campbell-Moffat J (the judge) and a jury by way of unanimous verdict, of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, (Count 1), and one count of possession of dangerous drugs contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, (Count 2).

2.  The judge sentenced the applicant to a total of 12 years and 8 months’ imprisonment for both counts.

3.  The applicant now applies for leave to appeal against his conviction.

4.  The first count alleged that the applicant, on 2 January 2019 outside Shek Yi House, Shek Lei (II) Estate, Kwai Chung, New Territories, unlawfully trafficked in 187 grammes of a crystalline solid containing 165 grammes of methamphetamine hydrochloride (commonly known as Ice). The second count alleged that on the same day, at Room 3205, 32^nd Floor, Shek Yi House, Shek Lei (II) Estate, Kwai Chung, New Territories, the applicant had in his possession 0.07 gramme of a solid, containing methamphetamine and 0.03 gramme of a solid, containing methamphetamine and cocaine.

The pre-trial hearing

5.  At a case management hearing on 21 October 2019, Mr Philip Wong, who represented the applicant at trial and in this application, discussed with the judge whether it was necessary to have a voir dire to determine the admissibility of a post recorded statement made by the applicant when he was arrested for Count 1. He said “It was Fat Yu who owed me 2,000, asked me to take this can of stuff”.^[1] He appeared to accept this statement was made voluntarily.^[2] He then explained that the defence case to Count 1 would be that the drugs were planted on the applicant. To which the judge responded, if that were the defence case, then that was a matter for the jury and not something to be resolved by way of a voir dire:^[3]

“Court: So I’m going to write here there is no issue of voluntariness.

Mr Wong: I will only say that, looking at everything together, we cannot say that this is – there’s no dispute on voluntariness.

Court: No, there is no dispute.

Mr Wong: Well, of course it’s up to you – it is your ruling. If there is no voluntariness, then there is no voluntariness.

Court: But if you are saying, you know, ‘I am an innocent person and this was all planted on me’, but that’s not for me, that’s for the jury, I can’t – I certainly could not, I do not have the power to exclude it on that basis.

Mr Wong: Yes.”^[4]

6.  On 25 October 2019, an unsuccessful application was made by the defence to sever Count 2 from the indictment.^[5] This application was made on the basis that the evidence from Count 2 would prejudice the trial in Count 1.

The prosecution case

7.  On 2 January 2019, two plain clothed police officers, PC 9062 (PW1) and PC 15157 (PW2), were on routine patrol in the vicinity of Shek Lai Estate. At 7:54 pm they noticed the applicant, whom they thought was acting suspiciously.^[6] They stopped and searched him. PW1 found inside a bag the applicant was carrying a tube of potato crisps inside of which were the drugs specified in Count 1.^[7]

8.  PW1 asked, “What is this stuff?”, to which the applicant did not answer. He was subsequently arrested for trafficking in a dangerous drug and cautioned. He was asked again what was the stuff inside the tube, to which the applicant replied, “It was Fei Yu who owed me $2,000 and asked me to take this tube of stuff”.^[8]

9.  PW1 made a post-record of what took place in his notebook, which read:

“At 7:50 on 2 January 2019, near a park off Shek Yi House, Shek Lei Estate, arrested male Au Kwai-sun for an offence of trafficking in dangerous drugs. Having been cautioned, Au Kwai-sun said to me in the Punti dialect, ‘It was Fei Yu who owed me $2,000. I was asked to take this tube of stuff ... I further asked Au Kwai-sun, ‘What is this tube of stuff?’ Au Kwai-sun said to me, ‘potato crisps.’ I further asked Au Kwai-sun, ‘What is the stuff inside the potato crisps?’ Au Kwai-sun said to me, ‘I don’t know what it is’”.^[9]

10.  PW1 and PW2, along with other officers, went back to the applicant’s flat to conduct a search. PW1 noticed the applicant had smoking apparatus in the flat, namely three Ice pots, where the traces of drugs in Count 2 were found. He arrested and cautioned the applicant, to which the applicant said, “The three Ice pots were used by me to smoke Ice”.^[10] This was not disputed by the defence. Also found in the flat was an electronic scale,^[11] a Watsons box containing a pair of scissors, a pair of tweezers and 26 transparent resealable plastic bags.^[12]

11.  In the admitted facts two fingerprint examination reports were produced. In the report concerning the drug related items it was stated that no mark of value was found.^[13] The prosecution called PW3, a fingerprint expert, who explained how fingerprints were lifted as well as why no fingerprints may be found.^[14] It was also an admitted fact that the estimated street value of the drugs at the time of the offence was $102,514, and the prosecution alleged the amount of drugs was too much for self-consumption and were for the purposes of trafficking. The prosecution also called PW4, a toxicology expert, who gave evidence about the likely consumption rates of the drugs in question.

12.  PW1 testified that no relevant evidence was found on the applicant’s phone.^[15]

The defence case

13.  The applicant did not give evidence or call evidence on his behalf. The defence case was advanced solely through the cross-examination and submissions of his counsel. Mr Wong alleged this was a set up by the police in order to protect “Fei Yu” (who was also known as “Fat Fish”).^[16] He suggested PW1 and PW2 were acting on information and the applicant had not, in fact, looked suspicious when he was intercepted.^[17] The applicant did not have any contact with the tube of crisps containing the drugs and was in the process of picking it up just prior to being intercepted.^[18] He contended that PW1 had found the tube on the grass beside where they intercepted the applicant. He suggested the police had not properly followed up with their investigation of the case, and the police did not want to expose Fei Yu.^[19]

14.  Mr Wong argued there was no evidence the applicant was the only one who resided in his flat. He stated that given the small quantity of drugs, there was no evidence of any intention by the applicant to control the drugs and therefore the prosecution could not prove he possessed the drugs.^[20]

15.  It was further suggested by Mr Wong in his closing speech that the applicant had said to PW1 when he was first arrested, “It was Fei Yu who called me and asked me to come down and told me the money was inside the tin”.^[21]

The applicant’s call record

16.  During his cross-examination of PW1, Mr Wong sought to put to him the call record purportedly from the applicant’s phone.^[22] The judge queried whether or not this was appropriate as PW1 was not a computer technician and so could not say whether the phone was working at the relevant time.^[23] The judge was concerned the requirements of section 22A of the Evidence Ordinance Cap 8 had not been met. Mr Wong argued section 22A was not engaged because he was not relying on the call record for the truthfulness of what was contained in there. He was only seeking to prove that there was such information on his phone.^[24] The judge was of the preliminary view that PW1 had given evidence that he did not look at the call record and it was not open to the defence to put the call record to him.^[25] There was further submission on this issue and the judge gave a lengthy ruling.[26]

The post-record

17.  In his cross-examination of PW1, Mr Wong asked if, before having made the post-record, PW1 presented the applicant with a notice to persons in custody.^[27] PW1 confirmed he did and that he had informed him he would later make a post-record of the caution statement, and that prior to the post-record he would give the applicant copies of the relevant documents.^[28] Mr Wong then put to PW1 that he had never explained to the applicant he had a right to refuse to be interviewed.^[29] In the absence of the jury, Mr Wong contended the applicant had an absolute right to decline to be interviewed. However, the judge was of the view that the applicant was not being interviewed at this stage.^[30] The judge then gave her ruling:

“You may not suggest to this witness that the administrative procedure carried out around the POL153, the local body search, the fingerprinting or anything else is considered to be an interview in law for the purposes of either the common law or the rules and regulations on the detention and questioning of prisoners”.^[31]

18.  Not long after this ruling, the jury were sent out again and, in their absence, Mr Wong explained to the judge it was the defence case that PW1 had added to the post-record that the drugs were found on the applicant.^[32] Mr Wong further said it was the applicant’s case that he had said Fei Yu told him money would be in the tube of crisps, but this was not recorded in the post-record.^[33] Mr Wong said he had informed the court of this at the CMH, but nonetheless accepted this was a matter for the jury.^[34]

The applicant’s submissions

19.  Mr Wong has filed Perfected Grounds of Appeal Against Conviction dated 8 January 2021, in which he raises numerous grounds of appeal. They are not framed as required by Practice Direction 4.2, nor particularised under any headings. I will summarise the grounds of appeal in sequential order as follows:

(1) The judge erred in “refusing the challenge of the admissibility of the conversation between the applicant and PW1 at the time of his arrest”,^[35] thus failing to hold a voir dire to determine its admissibility. The effect of this was to distort the nature of the applicant’s admissions to the police, and to undermine the defence case that the applicant had been set up.[36]

(2) The judge erred in refusing to allow defence counsel to adduce the whole of the call record in the applicant’s phone. This showed there were three Chinese characters denoting “Fish Boss” linked to a mobile number as well as relevant incoming and outgoing calls shortly before the applicant was intercepted.[37]

(3) The judge erred in refusing to allow defence counsel to cross-examine PW1 about his failure to remind the applicant that he had a right to decline to participate in the interview where he signed the two sets of notebook entries in PW1’s notebook.[38]

(4) There were excessive interruptions by the judge during the cross-examination of PW1 and PW2, as well as during the closing speech of defence counsel which amounted to the judge inviting the jury not to accept the applicant’s case at trial.[39]

20.  Mr Wong next submits the judge’s summing-up was unbalanced in so far as there were the following “material non-directions”:

(5) The judge failed to direct the jury on the defence counsel’s challenge as to the reliability of the oral conversation between the applicant and the police at the scene of his arrest.[40]

(6) There was no direction on the suspicious behavior of PW1 and how this was inconsistent with PW2’s evidence on the same aspect.[41]

(7) The judge failed to direct the jury that, as both PW1 and PW2 had written down the name “Fat Fish” in their witness statements and notebooks, this was good evidence to infer “that both PW1 and PW2 had had prior knowledge before intercepting the applicant as to who “Fat Yu” was”.^[42]

(8) The judge failed to direct that there was evidence that PW1 did not want to expose the identity of Fat Yu. This was because PW1 did not question the applicant about who Fat Yu was until 24 January 2019.[43]

(9) The judge failed to direct the jury that, PW1 having never looked into the applicant’s phone for relevant information, was “good evidence” PW1 was covering up for Fat Yu.[44]

(10) The judge failed to direct that there was no evidence the applicant was the only one occupying the room; nor was he the only one who had used the 3 bottles for smoking Ice; nor was there a direction as to the small quantity of drugs in Count 2.[45]

21.  Mr Wong finally submits the summing-up was unbalanced as there were the following “material misdirections”:

(11) The judge wrongly directed that the applicant’s shaking when he was intercepted by PW1 might have been due to long term drug abuse.[46]

(12) The judge was wrong to have directed that the applicant had the right to silence before he was arrested and cautioned as the direction suggested to the jury that “the applicant could have said something”.^[47]

(13) The judge failed to direct the jury that PW2 might not have been able to see the suspicious behavior of the applicant as testified to by PW1.[48]

(14) The judge was wrong to have directed the jury that the absence of the applicant’s fingerprints on any of the exhibits was neutral.[49]

(15) The judge was wrong to have directed the jury that counsel had no evidence to suggest that “Fat Fish” was the supplier of the “dangerous drugs”. This was because it was PW1’s evidence that the applicant had told him about Fat Yu- something which both PW1 and PW2 had written down in their statements.[50]

22.  Mr Wong concludes these grounds of appeal with the following general complaint.

(16) The conviction is unsafe and unsatisfactory.[51]

The respondent’s submissions

23.  Mr Pierre Lui, for the respondent, submits the judge did not fail to hold a voir dire as the voluntariness of the notebook entry was never in issue, and when Mr Wong was asked by the judge if there would be any challenge to the oral admissions at the scene, he replied “that would be for the general issue”.^[52]

24.  Mr Lui submits the judge was plainly correct to have refused to admit into evidence the applicant’s call record as the conditions under section 22A of the Evidence Ordinance were not met.

25.  Mr Lui notes during the cross-examination of PW1, it was suggested that before the post-recorded notebook entry was shown to the applicant, PW1 did not tell the applicant he had the right to refuse to be interviewed. This prompted the judge to intervene and ask Mr Wong what was the legal basis of such a proposition, as the applicant was not being interviewed at the material time. Mr Lui submits this is an example of irrelevant authority being used to support an erroneous proposition of law. Furthermore, Mr Lui notes the applicant exercised his right to remain silent in his subsequent video recorded interview.

26.  Mr Lui submits the judge’s interventions during the cross-examination of PW1 were justified.

27.  As for the complaint that the summing-up was unbalanced, Mr Lui argues the judge was entirely correct to have directed that, as the applicant had not given evidence, “there is no evidence from the defendant to undermine or to contradict or to explain the evidence put before you by the prosecution”.^[53] Mr Lui submits the judge did put the defence case to the jury. She summarized what was included in the notebook entry.^[54] She explained that the applicant had an absolute right to silence when being interviewed.^[55] She summarized the defence theory that the police had deliberately chosen not to investigate the case against Fei Yu.^[56] She mentioned the issue in this case was knowledge.^[57] She also mentioned the conspiracy alleged by the defence,^[58] as well as the defence on Count 2, that someone else might have used the Ice pots.^[59]

28.  As for the suggestion that Fei Yu had supplied the drugs and was somehow involved in the applicant’s arrest, Mr Lui submits the judge was correct to have directed, “there is absolutely no evidence of that and there is no suggestion put to either officer that Fei Yu had been involved in setting up the defendant”.^[60]

29.  Mr Lui also notes that at the end of the summing-up, Mr Wong was asked by the judge whether there was anything counsel wanted her to correct, alter or amend, to which he replied there was nothing.^[61]

30.  Mr Lui submits the judge’s directions on fingerprints were correct and in accordance with recent case law.^[62] The judge’s comment to the jury about the applicant shaking upon arrest was a matter which the judge directed the jury they could take into consideration,^[63] and there was evidence given at trial that long term users of Ice had a tendency to shake.

Discussion

31.  As to Ground 1, there is no basis for the complaint as the applicant did not challenge the voluntariness of the post-record. In fact, Mr Wong at the leave hearing accepted the statement of the applicant had been made voluntarily but complained that additional comments were made by the applicant which were not written down. This was an issue that was ventilated at trial and denied by the police officers when it was put to them.[64]

32.  As to Ground 2, the judge gave a ruling on the defence application to adduce the call record from the applicant’s mobile phone from PW1, the police officer who arrested the applicant and seized his mobile phone from him. There are aspects of the judge’s comments or ruling, such as what she said about the hearsay nature of the call record and compliance with the conditions under section 22A of the Evidence Ordinance in order to adduce the call record into evidence, that may very well provide a reasonably arguable ground. However, the main complaint concerns the judge’s refusal to allow Mr Wong to produce the call record through PW1, and it does not seem that he had any or sufficient evidential foundation to do so through this witness.[65]

33.  Mr Wong argued before the judge that the call record did not offend the hearsay rule as he was not relying on the truth of its contents and he did not have to comply with section 22A, citing HKSAR v Lui Kin Hong [2000] 1 HKLRD 92.

34.  Mr Wong wanted to produce a call record from the applicant’s mobile phone. He mentioned this to the judge at the Case Management Conference on 21 October 2020. That was about one month before the trial. He was put on notice that if he wished to do so he had to comply with section 22A. The call record showed three Chinese characters, which when translated referred to “Fish Boss”, together with a phone number, with which the applicant’s mobile phone had some incoming and outgoing, as well as unanswered calls shortly before the applicant was arrested. However, Mr Wong sought to produce the call record at trial during cross-examination of PW1, who had not examined the call record, and the judge ruled he could not produce it through this witness. It seems that as a result of what had transpired, there were submissions from the parties to the judge on this issue, who then gave her ruling. After which, Mr Wong was able to obtain an admitted fact from the prosecution which read, “In the “call record” in the Defendant’s mobile phone, Exhibit P17, Chinese characters and a telephone number were located.”

35.  It was open to Mr Wong to produce the call record as part of the defence case, but he did not do so. Mr Wong cross-examined PW1 in an attempt to have him connect the name Fish Boss on the applicant’s mobile phone with the name of the person the applicant mentioned at the time of his arrest, Fei Yu (Fat Fish), but he was unable to do so. In an exchange with the judge, Mr Wong confirmed that even if the screenshot of the call record was adduce into evidence he would not be calling evidence to prove that Fish Boss was Fei Yu. So for this reason it had very little forensic benefit to the defence case.

36.  To the extent that this ground advances a point of law in respect of the application of section 22A, leave is not required.

37.  As for Ground 3, the judge was correct in not allowing Mr Wong to cross-examine PW1 about his failure to remind the applicant he had a right to decline to participate in the interview when he signed the post-record. In his notebook, PW1 set out the events of the arrest and caution at the park, at 7:50 pm on 2 January 2019 and at his home at 9:05 pm on the same day. It was further noted that the post-record was made at 12:10 am on 3 January 2019, in which PW1 repeated his earlier entries and at the conclusion of the post-record at 1:15 am he read the post-record to the applicant and let the applicant read it himself and told him he could make any alteration, correction or addition to the statement he wished. At 1:30 am the applicant told him that he had nothing to alter correct or add, which he confirmed in a declaration adding the statement was true and he made it of his own free will.

38.  There was a lengthy discussion about this point between the judge and Mr Wong in the absence of the jury, in which the judge questioned the basis of his line of cross-examination with PW1. The issue arises as to whether the judge was wrong to limit or restrict this line of cross-examination. However, I consider this is more of an issue relating to the complaint about the judge’s interruptions during the cross-examination of PW1 and PW2 as articulated under Ground 4. To this extent, I am satisfied it is reasonably arguable.

39.  As for Ground 4, it is reasonably arguable that there were occasions when the judge interrupted or prevented the cross-examination of PW1 and PW2 and made comments that may have adversely reflected on the applicant’s case. Mr Wong provided the following example. It was the defence case that the applicant had been set up by Fei Yu and the police targeted the applicant. It was this line of questioning Mr Wong sought to pursue when cross-examining PW1. He complains he was prevented from doing so by the judge as shown in the following exchange:

“Q. What was the purpose of the patrol? I mean simply walk together or what?

A. That is to conduct an anti-dangerous drugs patrol.

Q. Who told you so?

A. Because generally, when we go out to have a walk, that is, to patrol, we would go to conduct anti-dangerous drug patrol.

Q. Nobody told you so.

COURT: They do for a living.

MR WONG: No, he -- I’m interested to find out anybody told him what was …

COURT: Nobody has to tell me to come in here and being a judge, Mr Wong.

MR WONG: No, he simply say that his see so understanding is to have what means to conduct anti-drug …

COURT: Yes, because that’s what they do for a living.

MR WONG: Well, I have to ask. I can’t assume.

COURT: Well, that’s what they just -- he’s just said, ‘That’s what we do’, and you’re asking him again, ‘Nobody needed to tell you’, but that’s what he does, he conducts antidrug patrols.

MR WONG: I have to ask. I don’t accept what he say, so I have to ask. He has said something which is -- may or may not be true. At the end of the day …

COURT: Well, if you’re going to put to him he wasn’t conducting an antidrug patrol …

MR WONG: No, no.

COURT: But I have a feeling that your case is that he was conducting an antidrug patrol.

MR WONG: No, my case is -- maybe I put to him later on.

COURT: Yes.

MR WONG: I don’t want to disclose at this stage.

COURT: All right, anyway.

Q. So …

COURT: He wasn’t -- he didn’t need to be told.”[66]

40.  Mr Wong submits that this exchange with the judge and others illustrate the extent to which she frequently interrupted his cross-examination and regrettably descended into the arena by undermining the defence case. He argues that the judge’s interventions prejudiced the fair trial of the applicant.

41.  In advancing this argument on appeal, the applicant is directed to set out the impugned interruption and to particularise how it prejudiced his fair trial.

42.  As for Grounds 5 to 10, they each complain about how the judge should have directed the jury in respect of factual issues before them. What is being complained about in these grounds is the judge’s failure to comment in a particular way about the nature or quality of factual matters that were for the jury to resolve. I do not consider these grounds to be reasonably arguable.

43.  As for Ground 11, this was a factual issue before the jury concerning how long-term users of Ice tend to shake and this was being explained by the judge to counter PW1’s evidence that he thought the applicant was nervous.[67] There is no cause for complaint about the judge’s comments. This ground is not reasonably arguable.

44.  As for Ground 12, Mr Wong complains the judge completely undermined the applicant’s right to silence by her comments that he could have said certain things but did not do so. He argues the following remarks were both inappropriate and unfair:

“When he was first asked what the stuff was, before he was arrested and cautioned, he made no response. The response was not, ‘Oh, I thought it was money’ or ‘Oh, I thought it was crisps.’ Always bearing in mind that he does have a right -- he has a total right to say nothing but circumstantially this is what occurred. His answer upon arrest and caution could be seen as an admission against interest. In other words, a form of confession depending upon how you read it when he said, ‘It was Fei Yu who owed me 2,000 and asked me to take this tube of stuff.’ That is a question of interpretation for you.”[68]

45.  I am satisfied the judge’s remarks provide a reasonably arguable ground of appeal.

46.  As for Ground 13, this was a factual issue before the jury and the judge was entitled to comment on the evidence. It concerned the distance that PW2 was in respect of the applicant at the time of his arrest and what he could observe.[69] This ground is not reasonably arguable.

47.  As for Ground 14, there was expert evidence before the jury in respect of fingerprint evidence and therefore there was a basis for the judge to direct that the fingerprint evidence was neutral.[70] This ground is not reasonably arguable.

48.  As for Ground 15, it concerns the judge’s comments to the jury when correcting what Mr Wong said in his closing speech. She noted Mr Wong suggested to them that Fei Yu, as opposed to Fish Boss, was the supplier of the drugs and that he was somehow involved in the arrest of the applicant. She told them there was no evidence of this fact and there was no suggestion put to either PW1 or PW2 that Fei Yu had been involved in setting up the applicant.[71] Mr Wong complains that it was not correct for the judge to say there was no evidence Fei Yu was the supplier of the drugs. He points to the applicant’s statement made at the time of his arrest that Fei Yu asked him to take “the tube of staff”, and that PW1 and PW2 had written down the nickname “Fat Fish” in their witness statement and notebook when the applicant had not explained that Fei Yu was Fat Fish. I am satisfied on the basis of the applicant’s statement at the time of the arrest this ground is reasonably arguable.

49.  As for Ground 16, this is a general complaint and dependent upon the success of any of the previous grounds.

Conclusion

50.  It follows from what I have said, Grounds 1, 5 to 11, and 13 to 15 are not reasonably arguable, while Grounds 2, 3, 4, 12 and 16 are reasonably arguable, and accordingly I grant leave to the applicant to appeal his conviction on those grounds.

51.  As for the grounds on which leave was refused, the applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.