HKSAR v. YU CHEUK SAN

CACC 324/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 324 OF 2002

(ON APPEAL FROM HCCC NO. 274 OF 2001)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court) :

Application for leave to appeal against conviction

1. The applicant was charged with seven offences of trafficking in dangerous drugs. The drugs were ketamine and what is commonly known as 'Ecstasy' and 'Ice'.

2. The first two charges were joint charges involving the applicant and another defendant. The other five charges were against the applicant alone. After a trial by Deputy High Court Judge Macrae S.C. and a jury, the applicant was found guilty of all seven charges. The co-defendant in the first two charges was acquitted. The applicant was sentenced to a total of seven years' imprisonment.

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

The prosecution case

4. The prosecution's case was that the applicant had sold dangerous drugs to undercover police officers in a disco in Wan Chai.

Charges 1 and 2

5. In respect of the first and second charges, two undercover woman police officers PW1 and PW2 went to the disco on 18 March 2001. PW1 had met the co-defendant (known as D2) a few days earlier at the disco. D2 came over and asked the police officers if they would like to sniff 'K' or take 'candy'. PW1 understood this to be a reference to drugs. When she said okay, D2 waved the applicant to come over to the table where the police officers were sitting. PW1 said that she wanted three 'Ks' and three 'candies'. PW2 said that she wanted one 'candy'. The applicant said that each item cost $100. The applicant then went away and came back with the dangerous drugs. He gave the drugs to PW1 and PW2 who handed him $600 and $100 respectively.

6. The drugs that were supplied were three tablets containing 0.06 gramme of metamphetamine and 0.60 gramme of ketamine; three packets containing 0.88 gramme of ketamine hydrochloride and a tablet containing 18 milligrammes of methamphetamine and 0.16 gramme of ketamine.

Charges 3 and 4

7. In respect of charges 3 and 4, PW1 and PW2 went to the disco again on 21 March 2001. The applicant came over to them and asked whether they recognised him. He asked whether they needed to sniff 'K' or take 'candy' that night. PW1 said that she wanted three packets of 'K'. PW2 said she wanted 'candies'. The applicant told them the price was $100 each. The applicant later returned and gave PW1 three packets of 'K'. The applicant told PW2 that the 'candy' would take a while. The drugs were given to PW2 later on. Again, money changed hands.

8. The drugs were contained in three paper packets which consisted of 0.87 gramme of ketamine hydrochloride and three tablets containing 0.50 gramme of 3-4-methylenedioxymeth- amphetamine hydrochloride.

Charge 5

9. The applicant also asked PW1 whether she wanted ice. He told her that the price was $300 per stroke. PW1 said that she wanted two strokes. The applicant told her that the goods had to be ordered from Kowloon. They exchanged telephone numbers.

10. On 21 March 2001, PW1 received a call from the applicant, telling her that the drugs were available. She went to the disco in the early hours of 22 March 2001. Later on, the applicant gave her a plastic bag containing a white crystalline transparent object. She gave him $600.

11. The drugs were 1.40 grammes of methamphetamine hydrochloride.

Charge 6

12. PW3 was another undercover woman police officer. In the early hours of 22 March 2001, PW3 talked to the applicant. The applicant said that her friend (PW1) had just bought two stroke of ice. The applicant asked PW3 whether she was interested in ice. The applicant said that the price was $2,500 for half an ounce. They exchanged telephone numbers.

13. On the next day, the applicant had made about six telephone calls to PW3. He told her that half an ounce of ice was available for collection.

14. In the early hours of 24 March 2001, PW3 went to the disco and met the applicant. The applicant gave her a plastic bag of ice. PW3 gave the applicant $2,500.

15. The drugs were 9.85 grammes of methamphetamine hydrochloride.

Charge 7

16. On 27 March 2001 the applicant telephoned PW3. He asked if the goods were okay and whether she wanted more drugs.

17. On the next day, the applicant telephoned PW3 again and told her that it would be cheaper by $1,000 if she purchased one ounce of ice.

18. In the early hours of 30 March 2001, the applicant telephoned PW3 and said the drugs would be ready but that there was only half an ounce. PW3 later went to the disco. The applicant gave PW3 a red 'Marlboro' cigarette packet which contained the ice. PW3 gave him $2,500 of marked money.

19. The drugs were 12.90 grammes of methamphetamine hydrochloride.

The arrest

20. Shortly after the exchange of drugs and money, the applicant was arrested by other undercover police officers who were present in the disco. After the arrest the applicant said :

‘ the packet of ice was sold to me by someone, I treated it to Ah Mun (PW3) and her group. I did not charge them.'

21. The marked money was not found upon arrest. Police officers later returned to the disco and found the money after turning on the lights in the disco and at a location inside the disco.

The defence

22. The applicant gave evidence. He worked at the disco as a public relations officer. He denied that he had sold any drugs to the police officers. He said that the police officers had asked him whether he could find drugs for them but he told them that he could not help them. He denied that he had made any admissions to the police officers at the time of his arrest.

23. In respect of Charges 1 and 2, the applicant said that he did see someone put something similar to 'Fing Dau Yuen' or 'K chai' on the table of PW1 and PW2, but he was not sure what they were and he pretended not to notice anything.

24. In respect of Charges 3 and 4, the applicant said that PW1 had again asked him if he had any ice and he told her that he could not help her.

25. In relation to Charge 5, on 22 March 2001 the applicant said that PW3 had talked about drugs and why she took drugs. She asked him if he could find some drugs for them to which the applicant responded he could not help them. During the evening he also saw a boy giving something to PW1 and PW3 but he pretended as though he did not see anything.

26. In respect of Charge 6, the applicant said that on 24 March 2001 he saw PW3 receiving something from a boy.

27. In respect of Charge 7, the applicant said that on 30 March 2001 someone from PW3's group had asked him for a cigarette and he gave her one of the two packets of cigarettes that he was carrying with him. PW4 took the packet and took out a cigarette and asked him for a lighter. He took out a lighter and tried to light it for PW4 but was unsuccessful. She returned the lighter to the applicant after she had lit the cigarette. After PW3 had left he was arrested by police officers.

28. He admitted that he had talked to PW1 on the telephone. The purpose was to ask her to come down to play at the disco. He also admitted that he had telephone conversations with PW3. He said he had asked her to come down to the disco to play. He also asked her why she took ice. In these telephone conversations PW3 had also asked him to get ice for her.

Complaint against counsel

29. The applicant was unrepresented at the appeal. He had prepared a number of written statement and affirmations. He was directed by Woo VP to prepare a single written submission containing all his grounds of appeal. He did so by a written submission dated 2 February 2004. This was supplemented by another submission received by the court on 17 February 2004.

30. The first ground of appeal is that he did not have a fair trial as he was forced to retain a counsel whom he had no confidence. He was previously represented by another counsel on the instruction of the Director of Legal Aid ('DLA'). This counsel had a traffic accident and another counsel ('the new counsel') was instructed to act on his behalf. The applicant said that while he had confidence in the first counsel, the same could not be said of the new counsel. He also had communication problems with the new counsel. The new counsel did not observe his instructions. He had asked DLA to assign another counsel for him. This was refused. After the fourth day of the trial in which the judge ruled that the verbal admission made by the applicant at the disco was admissible but not the post-recording of this admission, he instructed the new counsel to stop acting for him. The judge, however, told him that he would not grant him an adjournment if the new counsel was discharged and if he were not represented he would have to conduct the case himself on the following day. The judge asked him to reconsider the matter.

31. The applicant said that since he was faced with some serious charges, he could not defend himself and he was forced to continue to retain the new counsel.

32. The transcript of the application to discharge is included in the bundle of appeal. This is what the judge said to the applicant :

‘ COURT: Yes, just sit down for a moment.

1st defendant, will you stand up. We are four days into this trial. Mr Chong has been representing you; Mr Chong is a barrister and he is a qualified and experienced barrister. You, I think, are not, am I right, a qualified lawyer? There are obvious advantages in you being represented in this way: because the case has already started, because the case was sent from the Magistrates Court to the High Court many months ago and because you have, obviously, seen the papers, you know what the case is all about.

If you are not represented, you will have to conduct your defence yourself. As I have indicated, it would obviously be preferable that you were represented; given this is a criminal trial, the consequences are important and the trial can, at times, be difficult. Now, it's not for me to know why you wish to dispense with Mr Chong's services, but I want you to understand that I am not minded to adjourn this matter. The witnesses have been prepared for trial. We have had four days in which your cautioned - - your record of interview has been the subject of dispute and has now been - and not admitted into the evidence in the case. You have a co-accused and he wants his trial, and so I can tell you here and now, I am not minded to adjourn your case. If you are not represented, you will have to conduct it yourself.

I should also point out that whilst I will perform my role in stopping witnesses from giving evidence inappropriately, for example, in relation to hearsay, I am not your counsel and I cannot defend you from up here. So if you have no counsel, you will have to do it yourself.

Now, I am going to give you some time, I would like you to go down to the cells and to think about what I have just said. If you are to defend yourself, I will give you until tomorrow to collect your thoughts. You have all the statements and you will, tomorrow, begin conducting your own defence.

Now, that is what I'm telling you, so I would like you to go down now and I will give you such time as you require, and perhaps you will reflect on what I have told you, and perhaps I will call you up again at 11.30 and you can tell me then what you intend to do. Do you understand the options you have?

1ST ACCUSED: Yes, I do.'

33. After considering the matter for about half an hour, the following exchange took place :

‘ COURT:	Yes, D1, would you stand up. Have you considered what I told you this morning?
1ST ACCUSED:	Yes.
COURT:	Right. And what do you wish to do?
1ST ACCUSED:	Well, first of all, I would like to apologies publicly to my counsel.
COURT:	Yes?
1ST ACCUSED:	There was some misunderstanding between us, it was probably because we didn't have that much time communicating with each other, and that we did it in a big rush. And I wish that Mr Chong would continue to represent me.
COURT:	Right. Yes, thank you. Well, firstly, can I say I think you are sensible. Secondly, Mr Chong, is there some problem over the length of time you had in conference with the defendant? Is that something that you need to address?
MR CHONG:	No, I don't think so, my Lord.
COURT:	So we are all ready to go then?
MR CHONG:	Yes, my Lord.'

34. It is clear from the transcript that the applicant did not inform the Court that he felt he was pressured to retain the new counsel because he was not in a position to defend himself. He did not inform the Court that he did not have confidence in the new counsel.

35. According to the written submission of the applicant, on the day when he asked the new counsel to discharge himself, he had already met another counsel and sought his advice on the discharge of the new counsel. If the applicant was really concerned about not being able to defend himself, he could simply inform the Court that he had already sought the view of another counsel and he would like that counsel to represent him. If the judge was aware of this, then obviously the question of adjournment may have to be reconsidered by the judge. However, the applicant simply chose to inform the judge that he would continue to retain the new counsel.

36. In our view, it would be extremely dangerous to rely on the undisclosed intentions of the applicant who despite asking his counsel not to continue to act for him, had ultimately chosen to ask the very same counsel to continue to act for him.

37. The applicant complained that the new counsel had not observed his instructions; the solicitor's clerk had not taken full instructions from him and the evidence of the police officers on the telephone calls with him was contradicted by his telephone record. He said that he was not told whether his telephone record would be used or not. He further said that he did not touch the marked money and yet no fingerprint expert was retained on his behalf. He said that his offer to plea bargain was not put forward by his lawyers.

38. The new counsel had, pursuant to the direction of the court, filed an affirmation answering the allegations made by the applicant against him.

39. It is clear that the new counsel had defended the case with the level of competence that one would expect from a defence counsel. He denied that he had not observed the instructions of the applicant. He set out in detail the four conferences he had with the applicant before the trial started. These were in addition to two conferences held by the solicitor's clerk with the applicant before the trial. He dealt with all the relevant challenges to the prosecution's case such as those relating to the discrepancies in the evidence of the witnesses. He had clearly drawn to the attention of the jury that the applicant's fingerprints were not found on any of the exhibits. The judge had also referred to this matter in his summing-up. Counsel had also conveyed the offer of plea bargaining which the applicant instructed him to carry out. He also objected to the discharge of a juror who had applied to be discharged on the second day of the deliberation.

40. The challenges raised by the new counsel were drawn to the attention of the jury in the judge's summing-up. One can only say that the new counsel had discharged his duty conscientiously and with competence.

Admission of inadmissible evidence

41. The judge had after the voir dire ruled that the verbal admission made by the applicant at the disco was admissible as evidence but the post-recording of the admission was inadmissible.

42. The applicant alleged that the judge in his summing-up had referred the post-record to the jury. He had also failed in referring the problems of the post-record to the jury.

43. First of all, the applicant was factually wrong when he said the judge had referred the post-record to the jury. The judge did not. He merely referred to the verbal admission of the applicant at the disco. In relation to the post-record, the judge had merely referred to the post-record of the co-defendant to the jury when he was dealing with the case of the co-defendant.

44. As the post-record was not admitted as evidence, it means that there was no evidence on the post-recording and the judge was not under any obligation to refer to the evidence on the taking of the post-record.

45. The applicant also suggested that defence counsel had not objected to the disclosure of the post-record to the jury. There was no need for him to do so because the judge did not refer to the post-record of the applicant.

Conflict of evidence

46. The applicant suggested that the judge did not deal properly with the conflict of evidence of the prosecution witnesses. This is factually incorrect. As can be seen from the summing-up, the judge had referred to the discrepancies in the evidence of the prosecution witnesses which were the subject matter of cross-examination by the new counsel. The new counsel had vigorously cross-examined the undercover police officers by reference to their discrepancies in their note-books and the telephone records.

Identification

47. The applicant complained about the identification evidence.

48. In terms of the identification of the applicant in the identification parade by the police officers, the officer in charge of the identification parade had given evidence on how the parade was conducted. The applicant had asked two actors to be removed and he was offered the chance to change his clothing. He had raised no complaint at the time of identification parade. There was nothing irregular about the identification parade.

49. The judge had in his summing-up referred to the relevant cross-examination such as the particulars of the actors were not recorded and their photographs were not being produced. The jury was fully aware of these matters.

50. The judge had also given the Turnbull direction in respect of the identification of the applicant by the police officers in the disco. In view of the number of contacts between the applicant and the undercover police officers, there was ample evidence of identification against the applicant.

Juror not paying attention

51. The applicant complained that one of the jurors was observed using a palm electronic device during the trial. The new counsel had in fact drawn this matter to the attention of the judge. The judge said he and everyone should keep an eye on that juror. This took place on 28 May 2002. The trial with the jury started on 21 May 2002. The judge commenced his summing-up on 11 June 2002. The topic of the juror not paying attention to the proceedings was not brought up again after the matter was drawn to the attention to the judge.

52. The juror might have a momentary lapse of attention but obviously, nothing untoward had happened again, otherwise one would have expected the matter to be brought up again. Had this lapse of attention happened frequently, it may be a cause of real concern. However, the situation here is different.

Inducement

53. The applicant made the following submission :

the nature of his defence is that the undercover police officers had induced him to commit a crime but without success; as a result they gave false evidence against him in order to frame him for the offences he had not committed; the jury, after a nine-hour deliberation, asked for further direction on inducement; this showed that the jurors had doubts about the conduct of the police officers in respect of the inducement; however, the judge did not further direct the jurors that if they were doubtful about the truthfulness of the prosecution witnesses then they should give the benefit of the doubt to the applicant.

54. R. v. Looseley [2001] 4 All ER 897 clearly stated that entrapment does not provide a substantive defence to a criminal charge. The court, however, may stay a criminal proceeding if the police officers had brought about an 'artificial state-created crime'. The burden is on the applicant to show that this had taken place and the standard of proof is an extremely high one.

55. In this case, no application was made to stay the proceedings because, based on the applicant's own case, he did not take part in any 'artificial state-created crime' at all. His case is simply that the police officers had fabricated a case against him.

56. As shown in the transcript, the question asked by the jury was :

‘ if the officers induced the defendants, either one of them to sell the drugs, would the action of the selling drugs be regarded as guilty or not'.

57. The judge in his further direction stated that his understanding of this question was :

"‘ if either one of the defendants was induced, or enticed or incited so as to initiate the transaction would that have any effect on the guilt of a subsequent supplying of drugs'.

58. The direction given by the judge was this :

‘ if he (i.e. the applicant) was induced, as you have put it, to sell drugs by anyone of police officers, that is not a defence. It is a matter that you can bring to my attention in due course if you feel it appropriate so far as any mitigation of sentence is concerned'.

59. This was a correct statement of the law. The judge was not required to make further directions to the jury along the line suggested by the applicant. To do so would in fact undermine the principle of the law which had been accurately stated by the judge.

Discharge of juror

60. On the second day of the deliberation the judge had allowed one of the jurors to be discharged. The applicant claimed that this was prejudicial to him.

61. The transcript showed that the jury retired at 1:40 p.m. on 12 June 2002. At 9:14 p.m. of the same day the jury asked for further direction on the question of inducement. After the judge gave the further direction the jury retired and informed the court that it would continue with the deliberation on the following day.

62. Next day at 10:00 a.m., one of the jurors asked to be discharged. The judge allowed the discharge and gave a further direction on majority verdicts. The jury then continued with the deliberation. At around 2:30 p.m., the jurors raised questions concerning the co-defendant. They also stated that they were deadlocked on two of the charges.

63. The judge asked if they had reached some verdicts. The jurors replied yes. Verdicts were then taken. The jurors delivered the guilty verdicts on the charges faced by the applicant.

64. The judge then made further direction. The jury retired and later at about 3:30 p.m. returned a verdict of not guilty against the co-defendant on the two charges against him.

65. The juror asked to be discharged because he was anxious about a business trip to Malaysia. He had raised the matter twice orally with the judge and then wrote to the judge again on 13 June 2002 asking to be discharged.

66. The judge had discussed the matter first with counsel. He had the power under section 25(1) of the Jury Ordinance Cap. 3 to discharge a juror at any stage prior to verdict. The judge discharged the juror who was anxious about his commitment because, as he said,

‘ I don't want either him or the other jurors to feel that there is any pressure whatsoever to reach a verdict'.

67. In our view, the judge was correct to discharge the juror. To do otherwise would in fact pressure the jury to come to a decision quickly when one of them was obviously anxious to leave as soon as possible.

68. The applicant was found guilty on the first six charges by a majority verdict of five to one. While on the seventh charge he was found guilty by a unanimous verdict of six.

69. The applicant submitted that it was possible that the juror that was discharged had intended to find him not guilty. After his discharge, other jurors who had also minded to find him not guilty changed their minds.

70. It is simply not possible for the Court to read the minds of the jurors. What the applicant has submitted was merely a surmise. What is important in this case is that there is no evidence of any pressure being brought upon the jury. It would be wrong for the judge to discharge the whole jury and order a retrial as is now suggested by the applicant. The problem occurred because one juror was anxious to deal with his personal matter and the judge had dealt with this matter properly.

Conclusion

71. In our view there is no merit in the application for leave to appeal. We will accordingly dismiss the application.