HKSAR v. LAW HOI FU

[English Translation –英譯本]
CACC 289/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 289 OF 2014

(ON APPEAL FROM HCCC 408/2012)

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REASONS FOR JUDGMENT

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Introduction

1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  The particulars of offence stated that the applicant, on the 7^th day of August, 2012, at the 1^st floor staircase, Orchid House, 167-173A Sai Yeung Choi Street North, Mongkok, Kowloon, Hong Kong, unlawfully trafficked in a dangerous drug, namely 26.72 grammes of a crystalline solid containing 25.29 grammes of methamphetamine hydrochloride.

2.  The applicant was tried before M Poon J (the judge) and a jury.  On 15^th August, 2014，the jury found the applicant guilty of the offence of trafficking in a dangerous drug.  On the same day, the judge sentenced the applicant to 7 years and 6 months’ imprisonment.

3.  The applicant now seeks leave to appeal against conviction.

4.  On 14^th May, 2015, we granted leave to appeal at the conclusion of the hearing, treated it as the hearing of the appeal, allowed the appeal, set aside the conviction and sentence, and ordered a re-trial.  We now hand down these reasons for judgment.

The prosecution case

5.  Around 9:35pm on 7^th August, 2012，PC11712 (PW1) saw the applicant in Sai Yeung Choi Street North.  At the material time, the applicant was holding a helmet in his hand.  He appeared nervous and looked around from time to time.  Thereafter, PW1 intercepted the applicant on the pavement outside Orchid House, where he revealed his identity and demanded a search.  PC34970, PC11761 (PW2), WPC9654 (PW3) and Sergeant 52703 (PW4) arrived at the scene at different stages[1].

6.  As the applicant requested not to be searched in the street, PW1 and PW2 then took him to the staircase of the Orchid House, where the search was conducted while PW3 and PW4 were on guard at a higher position. PC34970 did not follow the other officers in entering the staircase of the Orchid House with the applicant, nor did he take part in the search and arrest[2]. During the search, PW1 found from the applicant’s person 3 packets of dangerous drug, one hidden underneath his belt around his waist region, the other one hidden in the helmet’s secret compartment for comb and the last one hidden between the layers of the helmet.  PW1 cautioned the applicant, who replied under caution, ‘I have nothing to say.[3]

7.  Thereafter, the applicant was taken back to police station for a second search.  The police seized from his person 4 mobile phones, and cash of HK$2,536.00 and RMB100.00.[4]

Defence case

8.  The applicant elected to give evidence.  His main defence was that he was not in possession of any dangerous drug at the material time but was framed by the police by way of planting instead.

9.  The applicant claimed that he was searched twice by the police.  The first search was conducted in the street outside Orchid House, during which no dangerous drugs were found.  Nonetheless, PW1 took away his waist bag and helmet, and then handed them over to PW3.  Thereafter, PW1, PW2 and PC34970 took him to the staircase of Orchid House for a second search.  The police demanded him to strip off but still no drugs were found[5]. PW3 and PW4 did not enter the staircase until the second search was completed. PW4 suddenly announced that 2 packets of dangerous drug were found from applicant’s helmet.  The applicant immediately said, ‘You guys are practically framing me!’  PW4 responded by saying, ‘If you’ve got anything to say, say it to the judge.’[6]

10.  The applicant further said that he was never cautioned and neither did he say ‘I have nothing to say’ under caution.[7]

Grounds of appeal

11.  The applicant raised 3(sic) grounds of appeal.

12.  The first ground of appeal was that the judge ‘forced’ the applicant to forgo his request to the Prosecution to call PC34970 for the defence to cross-examine by reason of such request being made too late.  As such, the applicant was denied of the right and opportunity to cross-examine a crucial witness resulting in an unfair trial.

13.  Mr Wong for the applicant submitted that although PW1 denied that PC34970 had entered the Orchid House, none of the prosecution witnesses had ever told the court of his whereabouts.  It seemed that PC34970 suddenly disappeared once the applicant was taken into the Orchid House.  Thus, as to whether the dangerous drug involved in this case was planted by the police officers as alleged by the applicant, PC34970’s testimony would indeed be quite crucial and directly relevant to the defence case.  The Prosecution originally had prepared to call PC34970 for the defence to cross-examine in response to their request.  However, the judge eventually forced the applicant to forgo his request to the Prosecution to call PC34970 for the defence to cross-examine by reason of such request being made so late, which might otherwise lead to the prolongation of the length of trial (since the appellant did not make his request to call PC34970 during the pre-trial review).  As such, the judge denied the applicant of the right and opportunity to cross-examine a crucial witness, which resulted in an unfair trial.

14.  The second ground of appeal was that in directing the jury, the judge made unjust and inappropriate comments on the applicant’s case and testimony by saying, ‘Is what he (the applicant) said that it was a set-up credible?  Is it reasonable?  It is up to you to decide.  Do you consider it a fact, as alleged by the defendant, that the case concerned a bunch of lawless police officers blatantly framing him by way of planting?  What do you think the truth is?  Do take care in making your own judgment and assessment.’

15.  Mr Wong pointed out that the judge’s above-mentioned direction was not quoted from the Prosecutor’s final submission since, as a matter of fact, there were no such unfair and unjust remarks in Prosecutor’s final submission.  Mr Wong was of the view that the judge should direct the jury to consider the testimony of all the witnesses in a fair and just manner in order to decide whether they were credible and reliable.  Mr Wong cited the case of HKSAR v Lee Fuk Hing [2004] 7 HKCFAR 600 in support of his argument.  In that case, the judge directed the jury by saying that they should consider that the alleged acts of the police officers involved in the case might cause them to face disciplinary procedures and subject them to criminal prosecution.  The defendant in that case was of the view that such saying amounted to directing the jury that the chances of those police officers telling lies were low as compared with other witnesses.  The defendant raised it as one of the grounds of appeal and had the conviction quashed by the Court of Final Appeal.  See pages 610G-611J in the judgment of Mortimer, Non-Permanent Judge of the Court of Final Appeal.  Mr Wong categorically pointed out that as the applicant’s defence was a set-up by the police by way of planting, so the credibility of the prosecution witnesses’ testimony was quite crucial.  Nevertheless, the judge’s comment was in no way fair and just.  Even though the remark, ‘What do you think the truth is?  Do take care in making your own judgment and assessment’, was added at the end, the harm done could not be undone as the jury might have been misled, which in turn caused unfairness to the applicant.  On top of that, the fact that such inappropriate comments appeared close to the end of the jury direction had much more serious prejudicial effect on the defence case and its testimony.

16.  In summing up, Mr Wong submitted that the applicant’s conviction of trafficking in a dangerous drug was unsafe and unsatisfactory based on the first and second grounds of appeal.

Respondent’s response

17.  The respondent was of the view that the judge had made a fair and detailed summing-up and a clear direction to the jury on all issues.

18.  In respect of the applicant’s first ground of appeal, the respondent replied that PC34970 was of no significant role.  The fact that that officer was not called to the court to give evidence did not cause any unfairness or prejudice to the applicant in the trial.  Moreover, the defence just raised in the trial that they ‘might’ need to call one more police officer, ‘349…’, but after the judge gave them time to consider, the defence eventually decided that there was no need to call PC34970 to testify[8]. The judge did not ‘force’ the applicant to forgo his request to call the relevant police officer.

19.  As to the second ground of appeal, those relevant passages, of which the applicant complained, were only the judge’s citations from the prosecuting counsel’s reply in his submission to the applicant’s allegation of set-up by way of planting against the police for the jury to consider[9].

Discussion

20.  We shall deal with the first ground of appeal.

21.  Prior to the jury empanelment, the judge and counsel representing prosecution and defence discussed the matter on case management. The transcription in connection with the first ground of appeal is as follows[10]:

Judge: Mr Leung, it wasn’t you who handled the pre-trial review on the last occasion?

MR LEUNG： Yes, that’s right.

Judge:But in the pre-trial review, Mr Wu (romanization) told me that he would like to have Sergeant 52703 and WPC7654…

MR LEUNG:  Yes.

Judge:  … to be identified.  Has the identification been arranged yet?

MR LEUNG: That will be arranged today.

Judge:  When will he be given the chance to do the identification?

MS YEW： We’ve told them to arrive here at 9:30am, I mean those witnesses, but I…perhaps (they) haven’t arrived yet.  (I’ll) call (them) again…

Judge: So, how come (we) will now—(we) will have one more?  If that’s the case, the pre-trial review served no purpose at all, right?

MR LEUNG： Understood, understood.

Judge:since the purpose of pre-trial review is to estimate the number of days required for the trial.

MR LEUNG: Understood.

Judge:  Well, on that occasion, you told me that 2 more (people) were required to be identified and that has been arranged for him to do so now.  Well, it is now said that there will be one more.

MR LEUNG： Right—pardon me, just—as a matter of fact, it mainly concerns with those two.  As a matter of fact, I mean…

Judge:  Can I wait indefinitely for you (to tell me) how many?

MR LEUNG: It is not necessary, not necessary, I mean, I think...

Judge: Are you able to say to me for certain how many more – are required?  On the last occasion, I was told that there would be just those two but the prosecution just now told me that 3 more might have to be called.  So, apart from PW1 and PW2, how many more are required to be called, by you?

MR LEUNG: Just the two (mentioned) previously and perhaps one more, that is 349…

Judge:  Why would there be one more?  Why wasn’t I told of that back then?

MR LEUNG: It’s…

Judge:  Why wasn’t I told of that in the pre-trial review?

MR LEUNG: Indeed, sorry about that, because—understood.

Judge:  Will there be further more (witness) required to be called during the trial?

MR LEUNG: No, there won’t be.  This…

Judge:  Otherwise, how am I supposed to tell the jury how many days we anticipate to spend in this trial?  I cannot let it get out of hand; otherwise, our pre-trial review was held for nothing, right?

MR LEUNG: Understood, your Ladyship.

Judge:I also don’t understand why there is all of a sudden a change in counsel.  That said, a change in counsel doesn’t mean that one has the right to increase the number of prosecution witness indefinitely.

MR LEUNG: Understood.

Judge:  I hope that you will bear this in mind.

MR LEUNG: Understood.

…

Judge:You are able to tell me for certain how many more prosecution witnesses you require to call, apart from PW1 and PW2.

MR LEUNG: Understood.

Judge:Because we now anticipate this trial to last 7 days.  I am going to tell the jury that the trial will last for 7 days accordingly.  I don’t want any delay.

MR LEUNG: Understood.

Judge:  Case adjourned pending jury empanelment.

(Transcription for court proceedings between 9:32am and 10:45am spared)

Judge:  Have we settled the identification issue yet, Mr Leung?

MR LEUNG: It’s been settled, already.

Judge:How many witnesses are required now, in addition?

MR LEUNG: just two more.

Judge:  You mean the sergeant…

MR LEUNG: and another…

Judge: ...and the woman police officer?

MR LEUNG: That’s right.

…

(Boldface has been added by this court)

22.  It can be clearly seen from the transcript that Mr Leung representing the applicant did not formally apply to call PC34970 at that time, nor did the judge ‘force’ the defence to forgo calling PC34970, as complained by Mr Wong.  The fact that the judge requested Mr Leung to tell the court after the empanelment of jury how many witnesses had to be called can sufficiently prove that the judge by no means made the defence forgo calling PC34970.

23.  In fact, the judge at that time only reminded Mr Leung that his predecessor did not request to call PC34970 in the pre-trial review and that if he was going to call PC34970, it would have an impact on the length of trial, which in turn would defeat the intended purpose of the pre-trial review and result in delay.  The judge not only did nothing improper here but also appropriately fulfilled her case management duty: for relevant legal principles, see HKSAR v Hon Min Kong (re: case management) [2014] 2 HKLRD 710，paragraphs 6 ‑ 7；and R v Jisl [2004] EWCA Crim 696，paragraphs 114 – 116.

24.  We found no merit in the first ground of appeal.

25.  As to the second ground of appeal, the Court of Final Appeal and the Court of Appeal have all along been emphasizing that a tribunal shall not find a prosecution witness more credible because of him/her being a police officer.  Likewise, in a jury trial, the trial judge shall not give such a direction or a direction to that effect to the jury.  We are of the view that the wording in the judge’s direction to the jury, of which the applicant complained, is worthy of scrutiny.  In directing the jury to consider whether the applicant’s ‘set-up’ allegation was credible or not, the judge added this question, ‘Do you consider it a fact, as alleged by the defendant, that this case concerned a bunch of lawless police officers blatantly setting him up by way of planting?’  Such wording in the question was not only out of line, but also tantamount to inviting the jury to reject the applicant’s suggestion when it was taken in context.  As such, the judge’s direction might indeed have misled the jury into believing that the testimony of the prosecution witnesses, being police officers, was more credible than the applicant’s and that they would not lawlessly and blatantly accuse the applicant in a wrongful manner.  That was an erroneous direction and as the issue in the trial involved the credibility of witnesses’ testimony, that was sufficient to render the conviction unsafe and unsatisfactory.

26.  Therefore, we found that the second ground of appeal was made out.

Conclusion

27.  We granted leave to appeal, treated the hearing as the appeal proper, allowed the appeal, and set aside the conviction and sentence.

28.  Since the case was serious and the evidence was sufficient, we thus ordered a re-trial.  The applicant was denied bail pending re-trial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.

[1] Appeal Bundle: p 30M ‑ 32H, 55I – T, 69T, 74D ‑ 75F, 56A and 66B

[2] Appeal Bundle: p 44I – K, 51M and 77P

[3] Appeal Bundle: p 15T ‑ 16F

[4] Appeal Bundle: p 16L and 39O ‑ R

[5] Appeal Bundle: p 53B ‑ F，67A ‑ T，71I，77T – U and 78F – G

[6] Appeal Bundle: p 53P

[7] Appeal Bundle: p 17G ‑ 18A

[8] Appeal Bundle: p 27K ‑ 28V

[9] Appeal Bundle: p 17G ‑ 18P

[10] Appeal Bundle: p 27K ‑ 28V.