HKSAR v. YUEN YU KIN

CACC 29/2019

[2020] HKCA 821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 29 OF 2019

(ON APPEAL FROM HCCC NO 192 OF 2018)

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J U D G M E N T

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

1.  In the Court of First Instance, before Alex Lee J (‘the Judge’) and a jury, the applicant was convicted after trial of trafficking in 960 grammes of ‘ice’ mixed in 1 kilogramme of crystalline solid[1].  He was sentenced to 21 years’ imprisonment.  Having been refused leave by the Single Judge to appeal his conviction, he renewed his application before the Court of Appeal.

Basic Facts, Parties’ Positions & Issue

2.  At about 4.32 pm on 19 December 2013, in the vicinity of the public sitting out area in Yue Man Square, Kwun Tong, the applicant was seen picking up a basketball which, the police later discovered, had a slit opening.  In the interior of the ball was the dangerous drug in question.  Packed in four re-sealable plastic bags, the ‘ice’ was worth $431,000.

3.  It was the prosecution case that[2] :

“ …… on the material day, the defendant, knowing that dangerous drug would be placed inside a basketball, went to the vicinity of Yue Man Square rest garden to collect the basketball. He knew that dangerous drug was inside the basketball and he deliberately picked it up. The prosecution further contended that judging from all the circumstances, including the substantial value of the drug and the way it was divided and packed, the only reasonable conclusion or inference to be drawn is that the defendant obtained possession of the ‘Ice’ for the purpose of trafficking …….”

4.  The defence position, on the other hand, was[3] :

“ …… the defendant went to Yue Man Square rest garden simply to meet a friend, Wah Gor. They were going to have tea later. However, the defendant was late for the appointment and Wah Gor had left to do some shopping. Whilst the defendant was waiting for Wah Gor to return, he, out of curiosity, and because of boredom, picked up the basketball intending to play with it. He did not know that dangerous drug had been concealed inside the basketball and he had nothing to do with any dangerous drug found inside.”

5.  Drawing the case overview to a close, the Judge observed[4] :

“ So members of the jury … [w]hilst there are a number of issues raised during the course of the trial, you may think that the most important issue for you to decide in this case is whether the defendant knew at the time he approached the basketball that there was dangerous drug concealed inside the basketball, and with that knowledge, he then obtained possession of the basketball as well as the things concealed inside.”

Prosecution Evidence

6.  The prosecution called four witnesses: PW1 (arresting officer), PW2 (exhibit officer), PW3 (Detective Senior Inspector and officer commanding the Regional Special Duties Squad of which PW1, 2 and 4 were members) and PW4 (investigation officer).

7.  PW1 whom the Judge suggested was “the most important amongst them”[5] described the events leading to the applicant’s arrest as follows[6] :

“ PW1 said that on 19 December 2013 at about 3.20 pm, he and his colleague, PW2, arrived at Kwun Tong in the vicinity of Yue Man Square by taxi, they having conducted an operation in Mong Kok that morning. Having received a short briefing from PW3, the inspector, PW1 and PW2 then commenced their duty separately.

PW1 said that at about 4.32 pm, he noticed a man who we now know was the defendant. The defendant was wearing a black jacket with a white upper garment at the time …… [T]he defendant was walking up and down along the pavement outside Yue Man Square rest garden and was looking around. The conduct of the defendant attracted PW1’s attention and PW1 …… kept the defendant under observation for …… about two minutes.

According to PW1, he saw the defendant walk up to a concrete planter kerb …… and then squatted down …… [H]e was about 20-odd metres from the defendant and he could see that in front of the defendant there was a ball-like object which PW1 had not noticed before during his 72-minute patrol along Yue Man Square. According to PW1, he also saw that the defendant’s hands were moving in such a way so that it seems to him that the defendant was searching something with both hands from the ball-shaped object, which we now know is the basketball, P6.

You would remember the hand movement that PW1 demonstrated …… Afterwards, PW1 saw that the defendant picked up the basketball, held it against his belly, covered it partly with his jacket and then walked towards PW1’s direction in a hasty pace ......

According to PW1, when he was only about four to five feet away from the defendant, he took out his warrant card, showed it to the defendant and said to the defendant that he was a police officer. Having heard that, the defendant immediately turned around. PW1 then dashed forward and threw his arms around the defendant getting hold of the defendant’s upper body. However, the defendant kept on putting up resistance and the basketball fell onto the ground during the process.

For a moment, the defendant was able to get himself free …… but PW1 immediately got hold of the defendant again and both of them fell onto the ground ...... PW1 kept telling the defendant that he was a police officer and asked the defendant not to move.  However, the defendant kept on struggling.  Later, PW2 came to assist PW1.”

8.  PW2 did not see PW1’s initial contact with the applicant.  He was on the other side of the road and was unaware of anything unusual until PW1 called on the phone and said there was someone suspicious.  When PW2 finally saw the applicant, he had already been caught up by PW1, and a basketball fell from his body[7].  When the struggle was over, and the applicant was put under control[8] :

“ …… PW2 went to where the basketball was …... [He] searched the basketball in the presence of the defendant. On the basketball, there was a slit of about six inches long. Inside the basketball, there was some white and yellow scrap paper, P5, and a total of four transparent ziplock bags each containing suspected dangerous drugs, which we now know is the ‘Ice’ …...”

9.  Under caution, the applicant stated, “I have nothing to say”.  This he signed and confirmed in a post-recorded cautioned statement in PW1’s notebook[9].  In a subsequent video recorded interview under caution, however, he gave an explanation as to why he was in the sitting out area and why he had picked up the basketball, the bulk of which was not accepted by the prosecution.  The prosecution relied on this interview only to the extent that the applicant admitted picking up the ball[10].

10.  The applicant was searched and had no other possession than $73 and a white colour mobile phone[11].

Defence Evidence

11.  The applicant elected to give evidence.  He denied being cautioned and stating that he had nothing to say at the scene[12]; and he disputed the post-record of the same in PW1’s notebook[13].  He admitted however to taking part in the video recorded interview voluntarily and apart from a lie about not having Wah Gor’s mobile phone number, averred that everything in it was true[14]. Taken as a whole, the applicant’s version of events was as follows[15] :

“ [The] defendant went to Yue Man Square …… to meet his friend Wah Gor because he had bumped into the latter the day before and [the two] of them had agreed to meet to have tea … [He] arrived at the …… rest garden at about 4.30 pm, which was 30 minutes late.

The defendant …… was late because he had forgotten their appointment and …… had gone with his girlfriend to Yau Ma Tei ...... [When] he suddenly remembered his appointment with Wah Gor …… he took a taxi …… [There was] a traffic congestion so he got off …… and took the MTR ……

The defendant referred to his call records and said that the calls with the number, 9525 XXXX, on 19 December 2013, were his telephone conversations with Wah Gor. He said he lied to the police in the video-recorded interview about not knowing Wah Gor’s number because he did not want to drag him down in the matter.

[After] he had arrived by MTR, at 4.28, [the defendant] made a call to Wah Gor. Wah Gor told the defendant that he had waited for …… so long and the defendant had not arrived …… [that] he had gone to …… do some shopping and would return to meet the defendant and they would then have tea. The defendant walked to the entrance of the rest garden to wait ……

[Once] he reached the entrance of the rest garden, [the defendant] spotted the basketball ...... He …… walked up and down the pavement for about 10 odd or 15 minutes whilst he was waiting …… He …… had walked past six to seven times and the basketball remained where it was ...... [S]ince Wah Gor had not arrived and he felt bored, he wanted to pick up the basketball to play with it ...... [H]e bent down his body to pick up the basketball but did not squat ...... [H]e could feel that the basketball was not properly inflated. He got up and twisted the basketball …… and did rotate it. Then he noticed that the basketball had a slit on it with some golden coloured paper protruding out from it. He had a fantasy that it was money, out of greediness. He intended to take the ball to the rest garden to have a look. However, he did not try to conceal the basketball with his jacket. He said he did not know that the basketball contained dangerous drugs.

[After] he had walked three to four steps …… somebody jumped upon him from behind. He fell onto the ground and the basketball … flied (sic) to the entrance of the rest garden ...... [H]e felt …… somebody …… gripping his neck and so he …… started to struggle …... During the process, he heard that person shouting, “Don’t move,” twice. Shortly afterwards, a second person dashed towards him, grabbed his hand and forked his neck and said, “Don’t move, police,” twice. The defendant …… then stopped. He …… had not known before that those persons were police officers.

The defendant …… [was] not …… cautioned at the scene.  During the journey to the police station …… he …… told police officers that those stuff did not belong to him, but the police officer did not say anything.”

The Appeal Before Us

12.  The applicant was differently represented at the time of the leave application when there was only one ground of appeal.  In the Court of Appeal, his representation was taken over by Mr Eric Cheung who, with leave, amended and increased the number of grounds to three.  At the hearing, Mr Cheung withdrew Ground 3 a constituent part of which was nevertheless continued to be argued under Ground 1[16].

Ground 1

13.  This ground reads :

“ The Judge’s direction on inferential reasoning based on circumstantial evidence departed from the accepted norm reaffirmed by the Court of Final Appeal in HKSAR v Nguyen Anh Nga (2017) 20 HKCFAR 149 in that the Judge failed to give directions on inferential reasoning ‘specifically set in the context of the evidence and the arguments thereon’. In particular, the Judge omitted to summarise the defence’s counter-arguments on the circumstantial evidence based on the prosecution’s case.”

(detailed submissions)

14.  The argument under Ground 1 goes as follows.

15.  Even if the jury were to reject the applicant’s version of events in its entirety, the prosecution case itself was not without difficulties.  These difficulties defence counsel had clearly identified in his closing speech[17] :

(a)  The absence of any evidence that could link the applicant to the drug or drug trafficking activities, such as fingerprints on the drugs and drug trafficking paraphernalia on his person[18] (the ‘Absence of Supporting Evidence Argument’).

(b)  There was no evidence of the applicant being in contact with the person who planned the ‘drop’.  The applicant was only described as walking up and down and looking around; there was no mention of him talking on the phone. This is highly unusual given the fact that the drug involved was worth a considerable amount of money, and had to be left unattended in the open[19] (the ‘Lack of Contact Argument’).

(c)  The ludicrousness of the alleged act of the applicant hiding half the basketball under his jacket and making his way from the scene hastily. This could serve no purpose but to attract attention so it could not have been true[20] (the ‘Ludicrous Act Argument’).

Based on PW1’s evidence under cross-examination, Mr Cheung has added to this list the lack of positive findings during the applicant’s two house searches[21] and PW1’s concession that, in walking up and down, the applicant could just be disoriented and trying to find his bearings[22].

16.  In giving directions on circumstantial evidence and the drawing of inferences, the Judge correctly told the jury that this depended almost entirely on the evidence of PW1, having previously pointed out that there was no direct evidence that the applicant knew there was dangerous drug in the basketball[23].  What the Judge failed to do then was to rehearse the defence list of inherent weaknesses in PW1’s account as per paragraph 15 above.  Instead, he repeated the prosecution case in four questions that were supposedly framed to assist the jury in the exercise of inferential reasoning.  Below are the impugned passages of the summing up[24] :

“ Having summarised the prosecution and defence evidence for you, I now return to the topic of circumstantial evidence and drawing of inference.

The circumstantial evidence relied upon by the prosecution, I think you would agree, but it is a matter entirely for you, depends almost wholly on the evidence of PW1. Now, if having taken into account the evidence of the defendant, you are not sure about the truthfulness of PW1’s evidence regarding his observation prior to the defendant picking up the basketball and whether he had, in fact, shown his warrant card and revealed his police identity to the defendant, then you may think, and it is a matter entirely for you, that there would not be sufficient evidence for you to draw as the only reasonable inference that the defendant knew when he approached the basketball that it contained dangerous drugs.

In case you reject the defendant’s evidence as to what had happened, then based on the prosecution’s evidence before you, can you be sure that: (1) the defendant prior to his approaching the basketball had walked up and down the pavement and looked around and that he did that not because he was looking for a friend or looking for a direction or for any other innocent reasons. (2) The defendant squatted down near the concrete curb, moved his hand in such a way over the basketball that he was apparently looking for something inside the basketball before he eventually picked it up. (3) The defendant for no innocent reasons, took flight immediately after PW1 had revealed his police identity to him. And (4) The defendant kept on struggling with PW1, knowing that PW1 was a police officer.

Can you be sure of the above? It is a matter entirely for you to decide. Now, members of the jury, at the end of the day, applying my directions to you yesterday, based on what you find as having been proven, if you are not satisfied that the only reasonable inference to be drawn is that the defendant knew at the time that there was dangerous drugs inside the basketball, then you must find the defendant not guilty.

If you are satisfied that the only reasonable inference to be drawn is that the defendant knew at the material time that there was dangerous drugs inside the basketball, then bearing in mind the other elements that the prosecution is required to prove for the offence of unlawful trafficking in a dangerous drug, you go on to consider whether you are also satisfied so that you are sure that the defendant had committed the offence as charged.  If so, then you must find the defendant guilty.  If you have any reasonable doubt about it, then you must find him not guilty.”

These directions were given on the second day of the summing up.  On the first day in the first part of his summing up, the Judge also gave full but general directions on circumstantial evidence and the drawing of inferences without any reference to the actual evidence[25]. A summary of the actual evidence was not given until the second day before the Judge embarked on the above passages.

17.  The abovementioned failure of the Judge falls foul of the fundamental requirement that any directions on inferential reasoning must be “specifically set in the context of the evidence and the arguments thereon”: HKSAR v Nguyen Anh Nga [26]; HKSAR v Wong Yu Wing [27].  As explained in the Wong case, another way of looking at such a breach is that it is “essentially a complaint of an unbalanced summing up”[28].

(relevant authorities)

18.  Whilst travelling on transit through Hong Kong International Airport, the appellant in Nguyen Anh Nga was found to be in possession of a suitcase with a false bottom.  Inside the secret compartment was 3.142 kilogrammes of ‘ice’. Her case was that she thought she was smuggling US dollars into Cambodia.  The issue at trial was, upon the ‘ice’ being discovered, whether her action and non-reaction namely crying, squatting and being expressionless etc showed she knew she was carrying dangerous drugs.

19.  On the question of inferential reasoning, the case reaffirmed that it is normally[29] :

“ …… unnecessary to give the jury any special direction on how they are to approach circumstantial evidence. Whether the prosecution’s case depends wholly or in part on circumstantial evidence, it is normally sufficient that the jury be directed that they may not convict unless they are sure of guilt …...”,

save and except :

“ …… [t]here may be …… exceptional circumstances in which it may be desirable or even necessary to give the jury a special direction on the drawing of inferences by telling them that no inference is to be drawn against the accused unless it is the only reasonable inference.”

20.  Where a special direction is indeed desired or necessary, Bokhary NPJ who gave the main judgment of the case had this to say[30] :

“ 24. In the course of a summing up, jurors receive many directions on the law. They must be assisted to see those directions in the context of the evidence and the arguments thereon. Where inferential reasoning is involved, the summing up is likely to contain repeated directions on the approach to inferential reasoning. It is to be expected that at least once in the course of the summing up, the directions on inferential reasoning would be specifically set in the context of the evidence and the arguments thereon. A summing up should relate the law that the jurors have to apply to the context in which they have to apply it. How that is to be done with regard to inferential reasoning is addressed in the specimen direction on the drawing of inferences to be found at p.21.3 of the Specimen Directions in Jury Trials issued by the Judicial Institute in September 2013.

25. That specimen direction, after indicating that no inference is to be drawn against the accused unless it is the only reasonable one, immediately continues as follows :

   [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that …  On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that …] (Italics in the original.)”

21.  The requirement or “norm” to contextualise a special direction was emphasised throughout the Nguyen judgment[31].  In other passages[32], the point was made that regardless of how clearly counsel may have set out the opposing arguments, their final speeches are not a cure for any departure from that norm by a judge.  A special direction that is specifically contextualised with reference to both the evidence and the arguments thereon is expected to be given at least once in the summing up.  As His Lordship explained, “[T]he proper approach to inferential reasoning is something which [the jurors] are to take from the judge as a matter of law”.

22.  In Wong Yu Wing, the appellant was found to be in possession of two lots of drugs in his room. Allegedly, he made admissions to “social trafficking”.  At trial, the issue was whether on its own the circumstantial evidence was such that trafficking was the only reasonable inference – in the event that his cautioned statements were rejected.  On appeal, the matter was conceded by the respondent on a ground that was premised on Nguyen Anh Nga but, as the Court of Appeal (differently constituted) observed[33], “[T]he judge only referred to the prosecution case and nothing at all of the defence case when directing the jury on inferences”.  Hence the remark that the appellant’s complaint was essentially one of unbalanced summing up.

(discussion)

23.  As conceded by Mr Cheung, the prosecution case was that of a ‘drop’, ie someone had according to prior arrangement left the drug on location for a second person to collect it for onward transmission.  It was what the parties understood and it was how the Judge had portrayed the case to the jury.  He said, “In the present case, the prosecution alleges that the defendant was trafficking in that he possessed the dangerous drug as a courier for the purpose of delivering it to others[34].” It is therefore wholly unrealistic to say that the absence of any fingerprints that are traceable to the applicant on either the drug or the ball should give rise to suspicion.  For the same reason, the fact that there was no drug or drug trafficking paraphernalia on the applicant or in his home is neutral and not inconsistent with the prosecution case.  The Absence of Supporting Evidence Argument was misguided and the Judge was under no duty to repeat it to the jury.

24.  In suggesting that there should be non-stop contact between the parties in a ‘drop’ situation, the Lack of Contact Argument was arbitrary and against the experience of these courts.  It implied a security which constant contact between the parties could not in fact provide whereas someone could always be keeping watch at a distance and would step in if some passer-by noticed the basketball and took an interest.  The argument was casual, off the cuff and based on a false premise.  The Judge was under no duty to repeat it lest it may harm the integrity of the deliberation of the jury.

25.  The Lack of Contact Argument was falsely premised in another sense.  The call record of the applicant was a matter of admitted fact[35]. It shows that his phone was in use in conversation with someone with the number, 5519 XXXX, five times during the hour before the incident, the last one of these calls being at 4.01 pm[36]. With regard to another number, 9525 XXXX, the applicant admitted to having four calls with, he claimed, Wah Gor during the same period, the last one of which was at 4.28 pm[37]. Notwithstanding the Judge’s warning to the jury that they were not to speculate about their content[38], these calls do at least establish the fact that the applicant was in frequent and almost exclusive contact[39] with two effectively unknown individuals until minutes before his interception (PW1 put this at 4.32 pm).  We do not see how in the face of this evidence the Lack of Contact Argument could be justifiably raised, and be expected to be rehearsed by the Judge.

26.  The Ludicrous Act Argument was not about putting before the jury any competing inference.  It was an attack on the credibility of PW1.  The idea is so incredible that it cannot be true was what the defence wanted to impress upon the jury.  This is clear from the defence closing speech[40]. It must also be correct because the question of inference does not arise until after a finding is made on whether or not the applicant had tried to spirit the basketball away under his jacket.  Given the apparent oddness of this act, but also the overwhelming inference of guilty knowledge if it was true, we are not surprised that the defence should adopt this course.  Any attempt to come up with a counterargument may only end up looking weak, artificial and do more harm than good to the applicant.

27.  This leads us to the fifth and last item on Mr Cheung’s list of rival arguments, namely the applicant had lost his orientation when he was seen walking up and down the pavement.  We find this to be a frivolous argument.  Whether according to the prosecution or defence case, the applicant was at the scene for a specific purpose.  Unless one is prepared to enter into all sorts of speculation, that must be the basic premise from which all the opposing but reasonable inferences are worked out. We do not think losing one’s orientation having just arrived at a small outdoor location on a planned visit is one such inference.

28.  That said, the point about the applicant walking back and forth was dealt with in the third paragraph (the ‘Key Passage’) of the impugned passages of the summing up[41]. There, under question (1), the jury were asked whether they can be sure that the applicant did not do so because he was “looking for a friend or looking for a direction or for any other innocent reasons”.  Besides pinpointing the situation of being momentarily lost, this question has a coverage covering all innocent explanations at least one of which is resonant of the original defence case.  We do not see why Mr Cheung should dismiss it as a question on rival inferences.  In fact, we fail to see why Mr Cheung should characterise the whole of the Key Passage as a mere regurgitation of the prosecution case and not a contextualisation of the direction on inferential reasoning.

29.  We have the above observation because, wherever applicable, the questions concerned were evenly balanced with a counterargument or counterarguments.  We have seen that in question (1).  Given how they are paired together and continue in meaning, so too were questions (3) and (4), with flight and the ensuing struggle being in effect one single piece of circumstantial evidence (a full subject direction was also given in the first half of the summing up[42]).  We should add that, in relation to flight and struggle, the bland reference to “innocent reasons” is often as far as any rival argument can go because, once a person is proved to have knowingly run or resisted the police in a stop and search situation, there is realistically very little to offer by way of innocent explanation. Finally, regarding question (2), the description of the ball by PW2 was such that there was no mention of any protruding paper from the slit opening[43].  If, in the circumstances, the applicant was found to have delved into the ball unprompted then the irresistible inference would be that he knew something was inside the ball.  We cannot think of any rival argument.

30.  In sum, what the Judge did in the second part of his summing up was to summarise all the evidence, integrate into that summary the respective comments and criticisms by counsel, and then guide the jury through the ultimate process of inferential reasoning based on what he said in the Key Passage.  As explained, the Key Passage was not about what the prosecution alleged.  It was concerned with primary facts which may or may not give rise to inferences that were unfavourable to the defence if proved. Moreover, the message was clear that the jury should not seize on any one inference without giving due consideration to the others.  In the end, how far that exercise can go would depend on what rival arguments these primary facts admit but, insofar as they were plausible, these arguments had all been identified by the Judge for the benefit of the jury.  We do not find that there was any breach of the rule in Nguyen Anh Nga.

Ground 2

31.  Ground 2 reads :

“ The Judge failed to direct the jury that the notebook entries of PW1 and PW2 which recorded that they had conducted operation in Mong Kok in the morning of the material day was not evidence of the truth of its contents and could not be regarded by the jury as evidence corroborating PW1’s disputed claim to that effect.”

(the ground explained)

32.  At trial, the credibility of PW1 was subject to immense challenge.  It was his evidence that formed the basis of the prosecution case and it was mostly in respect of matters which constituted the substance of that evidence that PW1 was attacked.  The Ludicrous Act Argument vide paragraph 15 above is an example[44].

33.  On the collateral issue of exactly when PW1 and PW2 went to Yue Man Square, together with their team or at a subsequent hour, a discrepancy between what they said in evidence and what PW4 put down in the investigation report was also made a subject of attack[45] :

“ ….. PW1 said that on 19 December 2013 at about 3.20 pm, he and his colleague, PW2, arrived at Kwun Tong in the vicinity of Yue Man Square by taxi, they having conducted an operation in Mong Kok that morning. Having received a short briefing from PW3, the inspector, PW1 and PW2 then commenced their duty separately.

……

The cross-examination of PW1 and PW2 by Mr Chau for the defence covered several areas.  First, it was suggested to them that they had not, in fact, been to Mong Kok in the morning of 19 December.  Now, members of the jury, the defendant himself, obviously, would not have any personal knowledge as to where PW1 and PW2 were in that morning.  The basis for this line of cross-examination by the defence is the investigation report prepared by PW4 after the incident …...”

34.  The matter was accorded some importance by both parties at least in the sense that they saw fit to revisit it in their final speeches in the following terms.  The prosecution stated[46] :

“  Now, but at this point may I invite you -- both PW1 and PW2 were cross-examined by my learned friend wanting to attack PW1 credibility and PW2 credibility by saying, “You are lying.  You are, in fact, not in Mong Kok,” because according to POLO155, the investigation report, it was stated in the POLO155, “All 14 members together all the time in the morning in the Kowloon West headquarter officer after briefing, 10.30, 11 am, all 14 members went straight to Kwun Tong even for Yue Man Square bus stop.  You must be lying when you said you were in Mong Kok doing other operation.”  But you will recall in re-examination of PW1, he confirmed, “No, it was true for I make a record in my notebook what I did that day.  It was recorded in my notebook on page 50 what time I have briefing in the office by Inspector Poon and then what time I went to Mong Kok for this anti-dangerous drugs operation and what time I finish the operation, about 3.00, and what time I arrive back to Kwun Tong area.”  All in the notebook.

The same applies to PW2.  He has entry in his notebook to the effect he also went to Mong Kok, but a different anti-dangerous drugs operation in Mong Kok area to that of PW1.  Even though we are both in Mong Kok but we are doing two different anti-dangerous drugs operation.  But the point is he had record in his notebook that he was in Mong Kok.  And then what time roughly?  He said, “About 2.30, I finish the operation in Mong Kok and then I join up PW1 and we went back to Kwun Tong,” and there in Kwun Tong he join up with the others and at the briefing and then further operation in Kwun Tong Yue Man Square.  So he did told you -- he have told you right.  He then -- sometimes the opposite side of Yue Man Square, cross the road, doing the observation, he said that.”

The defence[47] :

“ Members of the jury, [PW1’s] not telling the truth. Is he telling the truth about where he was after 11.15? Because, according to the accurate record of PW4, who was present, in his entries in the investigation report, he says these two officers were in Kwun Tong from 11.15 all the way through. So, members of the jury, who’s telling the truth there? It could very well be a mistake, could very well be. But my learned friend says, “Oh, PW1, PW2 wrote it in their notebooks, it must be true. It’s written, it must be true.” Well, look at it the other way. If PW4 wrote it in the investigation report and handed it to his superior, that must be true also, mustn’t it? He’s had access to all the notebooks, the witness statements and documentary exhibits. Why would PW4 write down that two officers were present at Kwun Tong when they weren’t? He was there.”

35.  How in light of the above the Judge handled the matter is the focus in Ground 2.  Below are his directions. Note in particular the reference to PW1 and PW2’s notebooks[48] :

“ …… You would remember that PW3, who was the team leader, the inspector, gave evidence that he had, indeed, assigned PW1 and PW2 to carry out a certain operation in Mong Kok that morning and that PW1 and PW2 only arrived in Kwun Tong in the afternoon, sometime after 3 pm.

Besides, PW1 and PW2 under cross-examination were able to point out certain entries in their respective police notebook concerning their operation in Mong Kok that morning.  Members of the jury, you would remember the direction I gave you yesterday on how to deal with inconsistency and contradiction in evidence between witnesses.  Is this inconsistency or contradiction material to your decision and your verdict?  If so, does it bear on the credibility of PW1 and PW2 and, if so, to what extent?  These are matters entirely for you.”

36.  The complaint of Mr Cheung is that, first, there was no allegation of recent fabrication; defence counsel was merely saying that PW1 and PW2 were not telling the truth.  Second, even if there was such an allegation, and the relevant entries in their notebooks became admissible in rebuttal, the Judge was in error in failing to direct the jury that the only use of these previous consistent statements was to show consistency on the part of their makers and not as evidence of the truth of their contents.

(discussion)

37.  We have not been provided with the evidence of PW2.  We do however have the transcripts in relation to PW1 which we inspected and it is correct that the defence did not accuse him of making up any evidence of late.  As a matter of fact, they had not in any way hinted that PW1 was guilty of recent fabrication[49] so the prosecution’s right to rebut was not engaged[50].  In any event, given what had happened, we agree with Mr Cheung that the Judge should at least have warned the jury about putting PW1’s notebook to improper use but did not.  In an attempt to come up with a rejoinder, the respondent has sought to rely on what, at a different place, the Judge said about witness statements not being evidence of the truth of their contents but, given in a different context in relation to a different topic[51], those directions are of no help.  All that having been said, it remains the case that the original discrepancy was on a collateral matter very much removed from the core issue of the trial; that there was no discernible reason why PW1 and PW2 should lie about their arrival time at the scene; that PW3, a ranking officer and team commander, had attested to the accuracy of that time; and that even by his own account PW1 had already been at the scene for more than an hour before the applicant arrived.  We do not see how in those circumstances the omission of a direction on the correct use of the police notebooks would have any impact on the case as a whole.

Conclusion

38.  We refuse to grant the applicant leave and dismiss his appeal against conviction.