HKSAR v. TSUI LOK HIN

CACC 194 /2019

[2023] HKCA 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 194 OF 2019

(ON APPEAL FROM HCCC NO 305 OF 2018)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The appellant was charged with two counts of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The particulars of the first count alleged that on 30 January 2018, at the passage between lifts 33 and 34 of Tower 5, Platform Level, Mont Vert, No 9 Fung Yuen Road, Tai Po in Hong Kong, together with Lau Lee-yung, the appellant unlawfully trafficked in a dangerous drug, namely 1,034 grammes of a solid containing 757 grammes of cocaine (“Count 1”). The particulars of the second count alleged that on 31 January 2018, at Flat B, 11^th Floor, Tower 6, Mont Vert, No 9 Fung Yuen Road, Tai Po in Hong Kong, the appellant unlawfully trafficked in a dangerous drug, namely 35 grammes of a solid containing 27.1 grammes of cocaine (“Count 2”). He pleaded not guilty and stood trial before Campbell-Moffat J (“the judge”)  and a jury. He was duly convicted of both counts on 12 June 2019 and sentenced to 20½ years’ imprisonment.

2.  The appellant appealed against his conviction on a point of law. On 11 August 2023, having heard argument from the parties, we reserved our decision, indicating that we would hand down our judgment in due course.  This is our judgment.

Prosecution case

3.  The prosecution case was essentially based on the appellant’s post-recorded admissions under caution at the scene and the testimony of four prosecution witnesses, all of whom were Customs officers. Between 15 and 29 January 2018, Customs officers had conducted a surveillance operation and observed the appellant, together with Lau Lee-yung (“Lau”), Leung Wai-to (“Leung”)  and Richard Chan wandering around the Mont Vert complex and going in and out of different towers of Mont Vert whilst carrying packets or bags[1].

4.  In the evening of 30 January 2018, Customs officers saw that Lau had placed a black plastic bag (“Exhibit P1”)  near a rubbish bin at the passageway on the ground floor outside Tower 5 of Mont Vert (“location 1”)[2]. At about 11:25 pm on the same day, a Custom officer seized Exhibit P1 at location 1 and found that it contained two black plastic bags[3], inside of which were a total of 1,034 grammes of a solid containing 757 grammes of cocaine[4]. At about 11:45 pm, the appellant entered a lift on 11/F of Tower 6 of Mont Vert.  He was later intercepted by Customs officer 1486 (“PW1”), who arrested and cautioned the appellant at the lift lobby on the ground floor of Tower 6 of Mont Vert, as he emerged from the lift[5]. Under caution, the appellant said that he lived in Flat B on 11/F of Tower 6 of Mont Vert (“Flat B”)  and he had come down for a walk[6].  Upon a search of his person, the appellant was found to be in possession of a key to Flat B. Accordingly, he was taken up to the said premises[7].  At about 12:25 am, the appellant said under caution that the contents of Exhibit P1 were “coke”[8], which, he explained upon being further asked, was a dangerous drug[9].

5.  Upon a search of Flat B, Customs officer 0187 (“PW2”)  found three utility bills in the name of the appellant on a table in the living room[10]. Furthermore, two zip-lock bags (“Exhibit P19”)  containing the cocaine particularised in Count 2, packaging materials, two electronic scales, kitchen utensils, amongst them a pot bearing the appellant’s left little finger print[11], and three packs of soda powder were found underneath the kitchen sink.  Under caution, the appellant said that Exhibit P19 contained the dangerous drug “coke”[12] and belonged to him[13].  The appellant also said that the kitchen utensils found in the kitchen were his and were used for manufacturing dangerous drugs[14].  When asked the purpose of the dangerous drugs being manufactured, the appellant said that the drugs were to be handed over to “Toto” and “Yung” for dispatching on his behalf[15].

6.  In the same evening, Lau and Leung were also apprehended by Customs officers and respectively brought in front of the appellant.  In the first confrontation, the appellant identified Leung as the person who had dispatched drugs for him[16]. In a second confrontation, the appellant identified Lau as his primary school classmate, who had also dispatched drugs for him[17].  All of the appellant’s utterances under caution and at the confrontations at the scene were post-recorded in PW1’s notebook (“Exhibit P58”).

7.  In a subsequent video-recorded interview, when the appellant confirmed that the copy of the post-recorded statement shown to him was the one to which he had appended his signature, he went on to say, “However, but it clearly reads ‘I did not manufacture dangerous drug(s)’. I would cook.”[18] He thus denied manufacturing dangerous drugs[19]. 

8.  It was not disputed at trial that the average street value of cocaine in January 2018 was HK$1,056 per gramme[20].  Accordingly, the combined value of the cocaine in Counts 1 and 2 was more than HK$1 million at the relevant time.

Defence case

9.  The appellant elected not to testify in court, nor did he call any defence witness.  Through questions put to the prosecution witnesses and defence counsel’s closing speech to the jury, it was the appellant’s case, in respect of Count 1, that he had made no admissions at all and, in respect of Count 2, that the dangerous drug concerned had never been in Flat B[21]. It was said that he only signed on Exhibit P58 because he was slapped twice on the face[22] by an unknown Customs officer[23].  Further, his replies in the video-recorded interview and in Exhibit P58 were not reliable[24].

Summing-up

10.  In summarising the prosecution case in respect of the confessions contained in Exhibit P58, the judge said[25]:

“The defence, on the other hand, say, “Yes, I signed the notebook, but I only signed the notebook because I was slapped.” Now, again, it is very difficult for you, actually, ladies and gentlemen, because we have no evidence of that. But we have got a suggestion of it to the officers and they said ‘No, that did not happen,’ and it is very hard to keep in your mind suggestions made of which you have no evidence and the actual evidence you have got. It is a very hard exercise indeed.” (“the impugned direction”)

11.  In summarising the defence case, in which the appellant suggested that the appellant was slapped twice, the judge said[26]:

“They have also suggested that the defendant only signed P58, that is the post-record, because he had been slapped. Again, as I said previously, unfortunately, there is no evidence of that, but you have heard what the officers said when challenged and you will consider that when you are looking at what you make of the admissions. But there is equally no complaint made or no other evidence to indicate that there had been some form of assault. So there was no complaint made in the video recorded interview, for example, or to the duty officer or to the guarding officer about any such assault.

…You will remember, again, that the defendant says that there were things that he disputed, in the video recorded interview he said there were things he disputed, but unfortunately you do not know what that is.  So that is a bit difficult in terms of it assisting you.”

Grounds of appeal and appellant’s submission

12.  In his Perfected Grounds of Appeal against Conviction, Mr Chau SC has put forward one ground of appeal on the appellant’s behalf, which is in the form of two sub-grounds.  Ground 1(a)  avers that the judge unfairly commented to the jury in the impugned direction that the appellant had not mentioned in his video-recorded interview, nor did he complain to the duty officer or to the guarding officer, that he had been slapped in the face. Ground 1(b)  avers that the judge exacerbated this unfairness by saying that there were matters disputed in the video-recorded interview but, unfortunately, there was no evidence as to what those matters were.  In short, the complaint is that the judge fell into error when commenting on the appellant’s right to remain silent.

13.  Whilst Mr Chau accepted that the judge properly directed the jury in accordance with the specimen directions in respect of the appellant’s right of silence, he argued that the impugned direction undermined the specimen direction by suggesting that the appellant did not make a complaint about the alleged assaults.  The jury was thus placed in difficulty when assessing the weight of the evidence.  On the one hand, the appellant was entitled to remain silent and not to have his silence used against him.  On the other hand, the judge directed the jury that there was no evidence from the appellant regarding the alleged assaults.  It was argued that the majority verdict (5:2)  returned by the jury on Count 1 (although the jury’s verdict on Count 2 was unanimous)  revealed that the jury must have had difficulty in reconciling the two positions.  Mr Chau contended that the judge’s comments concerned matters that were central to the appellant’s right to a fair trial. 

Respondent’s submissions

14.  Mr Wong, on behalf of the respondent, submitted that when the judge mentioned that there was no complaint made by the appellant, she was simply echoing her earlier directions that there was not any form of evidence before the jury in support of the assaults.  The judge was not impugning the appellant’s conduct or inviting the jury to draw any inference of guilt. 

15.  Mr Wong disagreed that there was a risk that the jury would indulge in an impermissible line of reasoning because of the fact of no complaint.  Firstly, at no time did prosecuting counsel make use of this fact in his closing address to the jury.  Secondly, the appellant did not give evidence at trial and was not thereby cross-examined on his failure to complain.  There was, therefore, no scope for the jury to use the fact of no complaint to undermine the appellant’s credibility.  Mr Wong added that the crucial questions for the jury were: (1)  whether the appellant had made the admissions; (2)  whether the admissions were true; and (3)  whether the admissions were obtained by oppression.  The jury had been reminded that if they were not sure of the answers to any of these three questions, they could not rely on the admissions.  The judge’s summing-up, when viewed as a whole, was a fair and balanced one. 

Discussion

16.  It is important to understand that this was not a case where the appellant had throughout his dealings with the Customs officers maintained his pre-trial right of silence.  When he was first arrested and cautioned by PW1, the appellant volunteered answers as to where he lived and why he had come downstairs.  When asked about his knowledge of Exhibit P1, he gave an exculpatory answer, “(I)  don’t understand what you are talking about”.  These answers were not the subject of challenge. 

17.  However, when the appellant was taken to Flat B, he was further cautioned in relation to the finding of Exhibit P1, and what it contained, and the appellant then made the admission that it was the dangerous drug “coke”. When another bag, Exhibit P2 was discovered in the kitchen together with cooking utensils, the appellant made further admissions, again under caution, that the bag contained “coke” and belonged to him, as did the cooking utensils, which were for manufacturing dangerous drugs.  When asked what the dangerous drugs were to be used for, the appellant explained they were to be handed over to two people who would dispatch the goods for him.

18.  As a result of these inculpatory admissions, Leung and Lau were separately brought into the bedroom of Flat B to be confronted with the appellant, upon which the appellant confirmed that they had each trafficked dangerous drugs for him.

19.  All of these events, including the admissions and the earlier statements upon arrest, were reduced into writing by PW1 in his notebook, Exhibit P58. The notebook entries were read over to the appellant and signed by him to confirm their correctness.  This exercise concluded at about 4:30 am on 31 January 2018.

20.  Although the appellant never gave evidence before the jury, his case, as put in cross-examination, was that he had only signed Exhibit P58 because he had been slapped twice on the face by an unidentified Customs officer in the living room of Flat B.  These allegations, which were put to the relevant witnesses in the flat at trial, were denied.

21.  Later, at 9:59 pm on 31 January 2018, inside Customs Headquarters in North Point, the appellant was formally interviewed on video by PW1 and PW3.  The appellant, in the course of that interview, answered a number of significant questions.  At the outset, he agreed to be interviewed in the absence of a lawyer and accepted that he understood the contents of the Notice to Persons in Custody, which had earlier been served on him and signed.  He identified his signature on Exhibit P58 and confirmed the contents of the post-record. However, he insisted that he did not manufacture or cook any dangerous drugs, although he confessed to consuming dangerous drugs in the premises previously.

22.  The appellant further described his background, saying that he had studied up to Secondary Six level, was unemployed and living on his savings.  He explained that he lived at an address in Sheung Shui with his parents and two younger brothers, but that there was also a female friend living in Flat B.  He said that on the evening in question, he had been at the podium of the building, taking a walk, after which he would go back up to his home, although he subsequently refused to answer a direct question as to whether he also lived in Flat B.  However, he did confirm that he had a key to Flat B, in which were found two mobile telephones, which he also acknowledged belonged to him.

23.  It is true that on a number of occasions, the appellant refused to answer certain questions, which prompted PW3 at one point to ask him whether he was going to answer any further questions related to the facts of the case.  To this question, the appellant gave a considered response that he was going to answer “some” of them.  Finally, when asked at the end of the interview if there was anything further he wanted to say, the appellant replied “No”.  The interview ended at 10:20 pm.

24.  It can be seen, therefore, that this is not a case where the appellant availed himself from the outset of his right of silence and adhered to that position during the Customs investigation.  On the contrary, he gave exculpatory answers upon arrest, inculpatory answers inside Flat B and what might be termed a “mixed statement” during interview, in which he confirmed the contents of the post-record but denied manufacturing dangerous drugs.

25.  However, the appellant elected not to testify, nor was any evidence called on his behalf.  Accordingly, the challenge to the relevant admissions he had made was governed by the mere assertion, which was put to the relevant officers in cross-examination, that he had been slapped on the face twice in the sitting room of Flat B.  This allegation explained why he had thereafter come to sign on Exhibit P58 and, accordingly, tainted any admissions contained therein; and presumably anything he later said during the interview.

26.  In addressing the appellant’s case, the judge made the obvious point that there was in fact no actual evidence of any assault upon the appellant.  She gave to the jury the standard direction, which is invariably given in these circumstances[27]:

“Any person suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. So you must not hold his refusal to answer questions in the interview against him. The exercise of his right to silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience.

In this trial, the defendant has not given evidence before you and it follows from what I have just said, does it not, that the defendant does not have to give evidence.  He is entitled to sit in the dock and require the prosecution to prove the case against him.  You must not assume he is guilty because he has not given evidence.  The fact that he has not given evidence proves nothing one way or the other.  It does nothing to establish his guilt.  On the other hand, of course, it does mean in this case that there is no evidence from the defendant to undermine, contradict or, indeed, to explain the evidence put forward by the prosecution.  You have to decide whether on the prosecution’s evidence you are sure of the defendant’s guilt.”

27.  The difficulty, of course, was that the appellant’s defence was to urge the jury not to rely on any of his admissions, when they had not actually heard any evidence from him as to any improprieties allegedly exerted upon him.  Whilst the judge was right to remind the jury that there was no evidence of assault or other impropriety from the mouth of the appellant, she very fairly told them that they could nevertheless consider how the suggestion of such impropriety was received and responded to by the relevant Customs officers.  Addressing the obvious point that it was very hard to judge whether something improper had happened when the defendant had given no positive evidence himself that it did happen, she said[28]:

“So [counsel for the prosecution], quite rightly, said to you what you do is, in fact, test the evidence you have got against the suggestions. The suggestions are not evidence for sure, but test the evidence you have got and the oral documents (sic)  and the documents to assess for yourselves whether you are sure of what the officers are saying.”

28.  The judge then carefully invited the jury to assess whether they could be sure the appellant was not slapped[29]:

“So if you were to conclude that the admissions that were made were obtained by [PW1], because he is the one that is asking the questions and getting the answers, as a result of slaps by an unidentified Customs officer in the living room, and was therefore likely to render those admissions unreliable, then you have to disregard them. So you see it is a two-stage process. ‘Did he, in fact, say X and if I am sure he said X is there anything that has happened which may render them unreliable, in which case I am not going to rely on them.’ And, in this case, be it again there is no evidence of it, the defence allege through counsel that the defendant was slapped twice by an officer who was showing him different drugs. Two bags were of different drugs, not P1, not the bags in P1, but two bags that had been brought in from outside. And if you conclude, that that suggestion, as a result of the evidence of the prosecution, because there is no other evidence, is or may be correct, then you will not be able to rely upon those admissions and you should disregard them.

If, however, ladies and gentlemen, you are sure he made the admissions and they were not obtained in an oppressive way, as a result of any form of violence, then you must go on to ask yourself ‘Are they nevertheless true?’”

29.  Later, the judge returned to the same point, in a passage which has given rise to the direction complained of[30]:

“[The defence] have also suggested that the defendant only signed P58, that is the post-record, because he had been slapped. Again, as I said previously, unfortunately, there is no evidence of that, but you have what the officers said when challenged and you will consider that when you are looking at what you make of the admissions. But there is equally no complaint made or no other evidence to indicate that there had been some form of assault. So there was no complaint made in the video recorded interview, for example, or to the duty officer or to the guarding officer about any such assault.” (“the impugned direction”)

30.  In his oral submissions, Mr Chau refined his argument concerning the impugned direction to submit that, although the judge was entitled to say that there was no mention or complaint about the slap by the appellant in the video-recorded interview, she was not entitled to refer to the fact that no complaint of assault had been made to the duty or guard officer.  He relied on a passage from Lee Fuk Hing v HKSAR[31], with which this Court is well familiar in complaints relating to infringements of the right of silence, namely[32]:

“There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.” (Emphasis supplied)

Thus, it was argued that since it could never be appropriate to point out that the appellant had not complained to the duty or guard officer, his right of silence had been undermined, the trial had thereby miscarried and the appeal must be allowed.

31.  We say that the Court is “well familiar” with this argument because, coupled with the contention that a misdirection as to the right of silence must inevitably affect the burden of proof and does not lend itself to the application of the proviso to section 83(1)  of the Criminal Procedure Ordinance, Cap 221, this Court is often invited to treat any infringement of the right of silence as raising a “red card”, as a result of which the conviction can never be salvaged.  Indeed, we think that was the logical extension of Mr Chau’s argument before us.

32.  It is in these circumstances that it is important to bear in mind that the exercise of the appellant’s right of silence in this particular case was a selective one: in fact, he answered more questions than he declined to answer and said much that was relevant to the prosecution; and perhaps also to the defence.  It is well to remember that the Court of Final Appeal in Lee Fuk Hing added this important qualification to what has often been interpreted as a wholesale proscription on using a defendant’s right of silence against the defendant in any way at all[33]:

“We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise)  which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross-examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

33.  Quite apart from the question of whether what the judge told the jury about the appellant’s failure to complain to the duty officer or guard officer undermined his “right against self-incrimination”, which the Court of Final Appeal had termed his “right of silence”[34], the judge was not inviting the jury to draw any adverse inference against the appellant.  She was simply making the point that, while the defence was that the appellant had been assaulted, there was no actual evidence of such an assault.  She was right: there was no such evidence from a witness of an assault anywhere in the case.  Indeed, prosecuting counsel made exactly the same point in his closing address to the jury.  Moreover, the judge gave a perfectly correct direction (at [26] supra)  that neither the appellant’s exercise of his right of silence during investigation or interview, nor his election not to give evidence, did anything to establish his guilt.  Indeed, she gave the standard instruction that all his silence meant was “that there is no evidence from the defendant to undermine, contradict or, indeed, to explain the evidence put forward by the prosecution”[35]. 

34.  As was accepted by Mr Chau, the judge was entitled to say that there was no mention or complaint by the appellant about the slap in his video-recorded interview.  Accordingly, it seems to us her comment of no complaint being made to the duty officer or to the guard officer about such an assault was of little or no consequence; in circumstances where the judge had told the jury that the appellant’s exercise of his right of silence could not amount to “an admission of any kind” or “reflect a guilty conscience”, and where there was no evidence before the jury the appellant had in fact been slapped.  As it was, the judge also gave a very fair direction that, notwithstanding the absence of any evidence that the appellant had been slapped, if the jury nevertheless thought that the “suggestion (of assault)  … is or may be correct, then you will not be able to rely upon those admissions and you should disregard them”[36].

35.  Every summing-up must be looked at in context and as a whole.  As Li CJ reminded us in Tam King Hon v HKSAR[37]:

“A summing-up must of course be fair. In considering whether it contains material misdirections, the directions complained of must not be looked at in isolation but must be examined in their proper context. Ultimately, it is the effect of the summing-up as a whole on the jury that has to be assessed.”

36.  When that is done, we think the appellant was, despite not entering the witness box to give evidence, dealt a very fair hand by the judge in relation to his counsel’s assertions in cross-examination that he had been slapped in the face, all of which were rejected.  In the result, the overall effect of the summing-up was very favourable to the appellant.  There is in our judgment no merit in this ground of appeal.

37.  Accordingly, we dismiss the appellant’s appeal against conviction.