HKSAR v. LEUNG WAI KIT

CACC 292/2019

[2021] HKCA 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 292 OF 2019

(ON APPEAL FROM HCCC NO 124 OF 2019)

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J U D G M E N T

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1.  The applicant was charged with a single count of trafficking in dangerous drugs, namely 28 grammes of a crystalline solid containing 24.33 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 5.99 grammes of a crystalline solid containing 0.36 gramme of methamphetamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following a trial in the High Court before Deputy Judge Johnny Chan (“the judge”) and a jury, the applicant was, on 6 September 2019, convicted of the count.

2.  By a Form XI filed on 27 September 2019, the applicant has sought leave to appeal against his conviction only.  To explain the apparent delay in this matter, it may be noted that the applicant was initially granted legal aid on 24 December 2019 but subsequently discharged it on 17 July 2020, after certain transcript had been obtained by his former legal representatives.  Thereafter, he acted in person and submitted a set of homemade submissions dated 2 October 2020, in which he advanced the flagrant incompetence of his trial counsel as a ground of appeal.  Pursuant to the directions of the court, affirmation evidence was exchanged between the applicant and his legal representatives at trial, which was duly translated for the benefit of the court.  As events transpired, the above ground of appeal was ultimately not pursued by the applicant, who re-applied for legal aid on 23 December 2020.  Legal aid was again granted on 19 March 2021, with Mr Cheung, solicitor-advocate, being assigned to act for him on 24 March 2021.

3.  Both parties have agreed that the question of leave may be decided on the papers. 

The prosecution case

4.  It was not disputed that, on 25 February 2018, at 4:45 pm, the applicant left the mezzanine floor of Front Block, 8 Gillies Avenue South, Hung Hom, Kowloon.  He was thereupon stopped by a police officer, while other police officers conducted a search of his flat at the rooftop of the building, where one male and one female were present.  Although no illegal items were discovered in the flat, some 12 transparent re-sealable plastic bags were found in his waist-bag, containing dangerous drugs as particularised in the count.  Also found on his person were $6,000 in cash and another transparent re-sealable plastic bag containing 10 empty re-sealable plastic bags.^[1]

5.  The applicant stated under caution that all of the dangerous drugs found on his person were for his own consumption.  A urine specimen was taken from him on the following day, 26 February 2018, in which he tested positive for amphetamines and cannabis.^[2]

The defence case

6.  The applicant elected to testify at trial.  His principal defence was that the dangerous drugs in question were purely for his own consumption.  He said that before leaving home and being stopped by police, he had taken “Ice” in the toilet of his home, after which he placed the hookah on the top of the water closet.  Whilst the police had been told of the existence of the hookah, they did not search the toilet nor did they seize it as an exhibit.  In this regard, the following questions and answers emerged from the examination-in-chief of the applicant:^[3]

“Q.	So your hookah was placed on top of [the water toilet flush], over there, right?
A.	Yes. Because it’s very tall, very high.
Q.	Did the police go into your toilet and search around this area?
A.	No.
Q.	So they didn’t go to the toilet; okay.
COURT:	Did you want the police to find the hookah which supported your case that you bought the drugs for self‑consumption?
Defence counsel:	My Lord, that might be perhaps too much to ask of the witness, to -- very well, my Lord. If you...
COURT:	Yes. Did you want to tell the police you had a hookah in the toilet?
Q.	His Lordship wants to know why didn’t you tell the police, “Look, you know, this is a thing I have for my own self‑consumption”, that’s his Lordship’s question, which is a fair one.
COURT:	“I have a hookah in the toilet to be used for consuming ‘Ice’”?
A.	Actually, this question was -- actually, a question was put to me by the police officer when they went to my premises to do a house search.
COURT:	What did they ask you?
A.	The officer asked me what else do I have in my home, then I said, “Nothing else except a bottle on top of the water closet.”
Q.	But did they go into the toilet?
A.	No. They entered my premises and talked to my girlfriend for a short while and then they left already. They asked my girlfriend whether this is your boyfriend. I came to take a look at this flat.
Q.	I see. His Lordship’s question was why didn’t you voluntarily say, “Hey, come into the toilet. This is my hookah. I use this”, you know, that’s his Lordship’s question.
COURT:	I think he said, when he was asked whether there was anything else in the premises, he told the officer that nothing else apart from a bottle on the top of the water closet.
Defence counsel:	Yes, my Lord.
COURT:	He did tell the officer there was a bottle.
Defence counsel:	He did. Perhaps the officers didn’t see ‒ bothered about that.
Prosecutor:	It wasn’t put to the officer.”

7.  Later, in cross-examination of the applicant, the issue of hookah was re-visited by prosecuting counsel^[4]:

“Q.	Well, of course, the police say, you’ve heard that they didn’t find any -- they didn’t find the ‘Ice’ pot in the toilet, you remember you hear that.
A.	But I did tell him.
Q.	And now, you are telling us that you did tell the officer?
A.	Yes.
Q.	That the hookah was in your toilet?
A.	Yes.
Q.	Did you have heard your counsel cross‑examining the police?
A.	Yes.
Q.	It based on your instructions.
A.	Yes.
Q.	It was not put to the officer that you said you told the officers “There was hookah in my toilet”, you remember that, don’t you?
A.	Can you say it again, I don’t understand.
Q.	Well, basically your counsel acting on your behalf, did not say to the police, “My client told you ‘I had a hookah.’”, you agree with that, don’t you? It’s all on record.
A.	Yes.
Q.	So which is why I suggest you are making this up now?
A.	Disagree.”

The summing-up

8.  The judge’s summing-up spanned some 25 pages of transcript.  For the sake of argument, it is more relevant to focus on the impugned directions below^[5]:

“Now, during cross-examination of the defendant it was pointed out that there were matters he told you had not been put to the relevant witness for the witness to respond. Despite so, what the defendant told you is evidence and you must take it into account in your consideration. However, the fact that such allegations had not been put to the relevant police officer for him to respond is a matter which you are entitled to take into account in your assessment of the credibility of the defendant. In this regard, the submission upon which [the prosecutor] made to you is that it was an indication that the defendant was making up false stories as he went along in giving evidence, otherwise his counsel would have put those allegations to the relevant witness. Whether you agree with this view is a matter for you.

You may ask yourself would it be an indication of the defendant making up a story to you.  In this connection you may wish to take into account the degree of importance of the matter and consider whether it is a matter which should have been put to the police officer.  Whether this matter affects your assessment of the credibility of the defendant is, as I said, a matter for you.”

Ground of appeal

9.  By his Perfected Grounds of Appeal dated 27 April 2021, Mr Cheung, who acts for the applicant here but not below, has advanced a single ground of appeal, namely:

“The prosecution attacked the applicant’s credibility during cross-examination as regards the applicant’s evidence given in chief that he had told PW1 during the house search that there was a hookah in the toilet for reason that such a version had not been put to PW1 by defence counsel. Prosecution counsel in his closing submission repeatedly invited the jury to draw the inference from the lack of puttage that the applicant was making up a story on this.

Contrary to the Court of Appeal’s decision in HKSAR v Chan Hing Kai [2019] HKCA 172; [2020] 1 HKLRD 1082, the judge in his summing-up erroneously endorsed the prosecution’s submission and invited the jury to take into account the lack of puttage in determining whether the applicant was making up a story and in their assessment of the applicant’s credibility, without mentioning defence counsel’s suggestion of other innocent explanations and without giving the applicant the benefit of such plausible innocent explanations.”

Respondent’s submissions

10.  Ms Ng, on behalf of the respondent, does not oppose the grant of leave in this case and concedes that it is reasonably arguable that the impugned directions of the judge exceeded proper bounds. However, she intends to argue, in due course, that the Court should uphold the conviction on the basis that there was no miscarriage of justice.

Consideration

11.  I am of the view that the ground of appeal averred is reasonably arguable.  Accordingly, I grant leave to appeal on that basis.

[1] Admitted Facts, at [1]-[3] and [5].

[2] Admitted Facts, at [4] and [12].

[3] Appeal Bundle (“AB”), pp 136D-137E.

[4] AB, pp 150N-151B.

[5] AB, p 28H-T.