HKSAR v. ATA, ASAF

CACC 292/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 292 OF 2013

(ON APPEAL FROM HCCC NO. 348 OF 2012)

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J U D G M E N T
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Hon Lunn VP:

1.  I agree with the judgment of Macrae JA and the dispositions of the applications for leave to appeal against conviction and sentence which he proposes.

Hon Macrae JA:

Introduction

2.  The applicant originally faced an indictment alleging two offences, namely theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Count 1); and trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 2). He pleaded guilty to the count of theft at the outset of the trial.  However, he pleaded not guilty to the count of trafficking but guilty to the lesser offence of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, which plea was not accepted by the prosecution.  After trial before Bokhary J and a jury, the applicant was unanimously convicted of trafficking in a dangerous drug and sentenced to 6 years’ imprisonment on Count 2 and 16 months’ imprisonment on his guilty plea to Count 1; with one year of the sentence on Count 1 being ordered to run consecutively to the sentence on Count 2, the remainder to run concurrently, making a total sentence of 7 years’ imprisonment.  The applicant now seeks leave to appeal against his conviction on Count 2 on the basis that he ought to have been convicted of possession of a dangerous drug and not trafficking in a dangerous drug.  He also seeks leave to appeal out of time against the total sentence of 7 years’ imprisonment passed upon him in respect of both offences.

3.  No issue is taken by Mr Cheng, on behalf of the respondent, in relation to the application for leave to appeal against sentence being out of time, since it would appear to have been a technical oversight on the applicant’s part in giving notice of his intention to appeal against one of the sentences in his formal notice only, when in reality his grounds embraced both sentences.

The trial

4.  The prosecution evidence was not disputed at trial.  The essential facts were that at around 2 am on 17 March 2012, the applicant was seen by plainclothes police officers approaching an apparently drunk and sleeping male who was sitting on the pavement in Jordan Road, Kowloon.  The applicant patted the male, a Korean tourist, who did not respond.  He then removed a paper bag from the man’s hand and walked away.  He was intercepted by the police.  The paper bag taken by the applicant was found to contain a brand new Apple iPad and case, valued at $6,830.  This property formed the subject-matter of Count 1.  Upon being searched, a plastic bag containing a suspected dangerous drug was found in the applicant’s front trouser pocket.  This formed the subject-matter of Count 2.  He was arrested and cautioned but had nothing to say. Later at the police station, the applicant was interviewed and again said that he had nothing to say.

The prosecution case

5.  The drug found in the applicant’s possession was 13.64 grammes of a crystalline solid containing 12.07 grammes of methamphetamine hydrochloride, commonly known as “Ice”, with a street value of $10,748.

6.  According to the expert report of Dr Lam Ming, which was produced at trial by agreement, chronic abusers commonly use 250 milligrammes to 1 gramme of “Ice” per day to feed their addiction.

7.  The prosecution contended from the circumstances in which the “Ice” was found, the absence of any paraphernalia associated with the drug’s ingestion, the personal circumstances and finances of the applicant and the drug’s quantity and value, that the applicant possessed the drug for the purpose of unlawful trafficking.

The defence case

8.  The applicant elected to give evidence and called one defence witness, who was his employer.

9.  The applicant stated that he was living with his parents, while his ex-wife and son resided in Pakistan.  He started taking drugs in 2009, firstly heroin and later “Ice”.  He was referred by his own counsel to his criminal record and said that he had pleaded guilty to all of the eight offences on that record, except the last one, which concerned the possession of false instruments.  In respect of his three previous convictions involving dangerous drugs, all were charges of simple possession of a dangerous drug only, to each of which he had pleaded guilty.  As for his previous convictions for theft, all were concerned with the theft of razor blades, which he claimed he had stolen in order to buy drugs.

10.  The applicant testified that he earned income from two legitimate part-time jobs, each of which involved distributing flyers and bringing customers to shops selling clothes in Tsim Sha Tsui, Kowloon.  He was paid $4,200 per month by each of these shops.

11.  As for the “Ice”, the subject-matter of Count 2, the applicant said that he bought the drug for his own consumption from someone called “Ming Chai” for “$7,000 - something”.  He was on his way home after buying the drug when he came across a drunken man sitting on the pavement from whom he took the opportunity to steal the iPad and its case, intending to sell them in order to finance his living expenses and drug consumption.  He said that it was cheaper to buy a large quantity of “Ice” and that buying one month’s supply on one occasion would reduce the risk of getting caught.

12.  The applicant testified that his daily consumption was about 0.30 grammes of “Ice”, sometimes more.  He was also receiving methadone treatment in an attempt to give up drugs.  He had succeeded in giving up heroin but found it difficult to stop using “Ice”.

13.  The applicant claimed that he earned $8,400 per month from his two jobs, for which he was paid on the 7^th and 10^th of each month respectively, and out of which he had paid for a month’s supply of “Ice”.  His daily travelling expenses were about $600 per month, and his daily living expenses amounted to $1,000 per month.  Since he lived with his parents, he did not have to pay rent.  His only other expenditure was the buying of clothing, on which he would spend about $200 to $400 every two months.

14.  The applicant said that he had his own bedroom at home, where he would consume drugs before going to work in the morning.  He agreed that no paraphernalia for the consumption of drugs was found in his home by the police but contended that he kept it outside his bedroom window.  The officer who searched his premises, however, was not asked in cross-examination whether the police had searched the area outside his window.

15.  The defence witness testified that he had employed the applicant at a wage of $4,200 per month.

Summing-up

16.  In her summing-up, the judge properly identified the issues arising in the case:

“As I have told you, there is no dispute that the accused had the dangerous drugs in the count in his possession. The question in this case is this: what was the purpose for which he had these dangerous drugs in his possession? If he was in possession of them for his own consumption, which is the defence case, then he would be not guilty of trafficking, but guilty only of the alternative offence of simple possession, which is still a crime, but a less serious one. If, on the other hand, he was in possession of the dangerous drugs for the purpose of trafficking, which is the prosecution’s case, then he would be guilty of trafficking as charged.”

Grounds of appeal against conviction

17.  In his original perfected grounds of appeal, Mr McGowan, on behalf of the applicant, argued that the inference of trafficking was not the only inference which could be drawn from the applicant’s admitted possession of the seized drugs.  Furthermore, it was submitted that the learned judge had positively encouraged the jury to conclude that he possessed the drugs for his own consumption, which suggested that she had formed a view that he should be found not guilty of trafficking.  Accordingly, if that were her view, she should have withdrawn the case of trafficking from the jury.  In particular, Mr McGowan relies on the following passages in the summing-up, among others, where the judge directed as follows:

“As it happens in the present case, the expert evidence for the prosecution does not contradict the accused’s evidence that he is not guilty of drug trafficking but only (guilty) of simple possession;

…..

As it happens, you may think that the accused and his witnesses gave evidence in a convincing manner…;

…..

As it happens, the prosecution’s witnesses’ testimony is not of any harm to the accused, and the defence evidence consists of no discrepancies;

…..

It is for the prosecution to make you feel sure, if it can, that the accused is guilty of trafficking. It is a matter for you as the sole judges of fact, but you may well think that the prosecution has failed to do that, and that you should find the accused not guilty of trafficking and guilty only of simple possession;

…..

As I have said, it is a matter for you, but you may well think that the prosecution has not done so. If you are not sure that the accused trafficked in those dangerous drugs, then you would acquit him of trafficking and convict him only of the alternative of simple possession;

…..

I have to tell you, in all fairness to the accused, that his account of being only a drug user and not a drug trafficker is an account which was unshaken in cross-examination;

…..

You may well think that the defence is right and that you should acquit him of trafficking and convict him only of simple possession;

…..

A jury is entitled to take its time in deliberating on its verdict and should feel under no pressure as to time or anything else. Meals will be arranged for you at such meal times as may arrive while you are deliberating. Having said that, I would mention that it may happen that you will very quickly reach your conclusion that you may find the accused not guilty of trafficking but guilty only of simple possession.”

Consideration

18.  On one reading of the above passages, it may indeed seem that the judge was herself persuaded by the applicant’s evidence and that she thought he should be found not guilty of trafficking but guilty of the alternative of simple possession.  However, this was a jury trial, where, as the judge correctly recognised, the jury were the sole judges of the facts.  She told them in terms:

“The facts of this case are your responsibility. You will wish to take account of the arguments in the speeches you have heard, but you are not bound to accept them. Equally, if in the course of my review of the evidence, I appear to express my views concerning the facts or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them; and if I do not mention something which you think is important, you should have regard to it in any event and give it such weight as you think fit. When it comes to the facts of this case, it is your judgment alone that counts - remember that.”

19.  In so directing, the judge was giving a standard direction which is routinely given in all jury trials and which serves to emphasise the different roles of the judge and jury in a trial before the High Court.  If such a direction means anything at all, then it is entirely a matter for the jury what they make of the evidence, whatever views or comments may be expressed, and however forcefully, about the evidence or the witnesses by the presiding judge.

20.  Of course, where a judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it would be his duty, upon a submission being made, to stop the case: see R v Galbraith [1981] 73 Cr App R 124 at 127.  Here, however, no submission was made, nor do I consider that such a submission could realistically have succeeded.  I agree with the summary of the evidence which Mr Cheng has identified in support of the applicant’s conviction for trafficking.  Firstly, the applicant was found in possession of a not insubstantial quantity of “Ice” in the small hours of the morning, in a public place and not at his home in Shek Kip Mei, where he said he consumed drugs.  Secondly, although the applicant claimed that he was on his way to his home where he said he consumed drugs, no other drugs or paraphernalia suitable for the consumption of “Ice” were found at his home.  Thirdly, even accepting the applicant’s monthly income of $8,400 and that he only paid “$7,000 - something” for the drugs concerned, which were matters for the jury to determine, the street value of the drugs was over $10,000.  Fourthly, the stealing of the iPad could not have been in the applicant’s contemplation at the time he allegedly paid for the drugs in question.  Fifthly, on his own evidence, the quantity of “Ice” found in the applicant’s possession would have been sufficient for as much as 30 to 40 days’ consumption, yet could have supported multiple users.

21.  It was, therefore, eminently a matter for the jury, and not the learned judge, what they made of the applicant and his witness’s evidence and what inferences they drew from the facts and circumstances of his possession of the drugs.  I would endorse the approach of the English Court of Appeal in R v Kemp [1995] 1 Cr App R 151 at 155A - E:

“It might be said, although the Crown do not agree with the suggestion, that the verdict was a surprising one in the circumstances of the conflict of evidence and the fact that one of the witnesses called by the defence, who completely supported their version, was a very respectable lady who was, in fact, a prison officer. Nonetheless, it was certainly a case fit to go to the jury as the defence themselves conceded at the time.

We have no doubt that the judge’s intentions were of the best. He clearly thought that an acquittal was inevitable and wanted to save time and money. However, he was wrong. An acquittal was not inevitable. Plainly the jury must have taken another view of the witnesses….. than he took himself. The question is posed by Mr. Farley, may his intervention, however well intentioned, have led to a wrong result?

Plainly, had he not intervened and the jury had convicted, the verdict could not have been impugned. But he did intervene. What then should this Court do? Mr. Farley has put the matter most attractively. He says, first, that the verdict is unsafe because an experienced judge felt, having seen the witnesses, that the Crown could not satisfy the jury so that they were sure of guilt. Secondly, he says that the verdict is unsatisfactory because the judge stated that view publicly before the jury’s verdict. The answer to those points, however, is really this: it does not matter what this judge, however experienced, felt about the witnesses. The decision about the witnesses was a matter for the jury, and it is not for this Court to tell the jury what they ought to have felt about the witnesses any more than it was a matter for the judge.”

22.  It seems, with respect, that Mr McGowan’s argument comes perilously close to that which was rightly rejected by the Court in Kemp.  In my judgment, there was sufficient evidence upon which a properly directed jury could properly have convicted the applicant of trafficking in a dangerous drug.  They did so, and they did so unanimously.  I see no basis upon which we should intervene on this ground.

Further ground of appeal

23.  In the course of Mr McGowan’s argument, we drew a matter to counsel’s attention which concerned us.  During cross-examination of the applicant at trial, counsel on fiat for the prosecution had asked the following series of questions about the search of the applicant’s bedroom, where he said he consumed drugs:

“Q. … the police, the lady officer who gave evidence, said that they didn’t find anything of significance?

A. Yes.

Q. So the police missed, they didn’t find the bottle and the pipes that you used to consume “Ice”?”

Pausing here, there was nothing improper thus far about this line of questioning.  The judge then intervened to point out that the applicant had said in his evidence-in-chief that he stored the equipment for taking drugs outside his window in or under an air conditioner.  To this question, as then modified, the applicant gave an equivocal answer:

“Q. Yes. No.”

The following exchange in cross-examination then took place:

“Q. And you didn’t think of telling them that “This is where I consume my ‘Ice’ and this is the equipment I use to consume it”?

A. No.

Q. And why not?

A. Because they did not ask me.

Q. I suggest to you that this is completely untrue, that there’s no equipment in your home at all?

A. It’s true and equipment was there.

Q. I suggest you’re not an honest person.

A. What do you mean?

Q. You’ve got many convictions for dishonesty.” (Emphasis added)

The cross-examination then continued in relation to aspects of the applicant’s criminal record, to which he had earlier referred in his evidence-in-chief.

24.  What concerned us was whether, the applicant having already exercised his right of silence upon arrest and subsequently at the police station, the italicised part of the above exchange was a permissible line of questioning and, if not permissible, whether it’s potential harm was adequately addressed or dealt with at trial.  It should be added that at no stage, either during or after the applicant’s cross-examination, did defence counsel at trial, not Mr McGowan, object to this line of questioning or the answers it elicited.

25.  Having drawn this matter, as well as the authority of Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, to counsel’s attention, Mr McGowan then sought leave to argue a further ground of appeal to the effect that the learned judge had failed to direct the jury that the applicant had an absolute right not to answer questions during any police investigation following his arrest and that the prosecution could not utilise his failure to inform the police where he consumed “Ice” and the location of his equipment in any way against him, whether as to guilt or credibility.  Mr Cheng did not object to this application.

26.  Since it became necessary to determine what, if any, emphasis was given to this issue in the speeches of counsel, we invited both counsel to listen in court to the closing addresses to the jury of both the prosecution and the defence, and facilities were duly made available to the parties for that purpose.  We subsequently called for transcripts of both speeches to be prepared and, they having been served on the parties, we invited further argument on the matter.  Given the applicant’s evidence that the equipment he used for consuming “Ice” was kept not in his room but outside the window of the premises, we also listened to, and subsequently called for a transcript of, the evidence of WDPC Chan Wing Kwan (PW2), to see whether or not the officer had ever been asked by defence counsel whether a search was conducted outside the window and, if so, with what result.

27.  It has now become clear that at no stage during prosecuting counsel’s speech to the jury was anything made of the fact that the applicant did not tell the police where his drug-taking equipment was kept. Nor did defence counsel in his speech touch on the matter, although he did explain to the jury, in the context of the applicant declining to say anything when interviewed by the police, that

“… that is his right, that’s everyone’s right not to answer any questions the police ask you, unless it’s related to your name, your identity card, your address. Apart from that, you’re not obliged to answer any questions… You’re not obliged to say anything you don’t want to, and that’s what the defendant said: ‘I do not want to say anything.’

… the law basically says you are not to draw any adverse inferences – that means, not any bad conclusions from him saying nothing – and that’s something her … Ladyship will, of course, remind you in her summing- up.”

Furthermore, it is also clear that WDPC Chan was never asked any question about a search of the area outside the applicant’s bedroom window.

28.  Mr Cheng argues, that while the italicised parts of prosecuting counsel’s questions (at para 23 supra) were irregular, they did not, in the circumstances, amount to a material irregularity. Nothing more was made of the particular issue by either counsel in his speech. Moreover, at the end of his cross-examination, prosecuting counsel had made it clear that he accepted the applicant was an abuser of “Ice” but suggested to him that he was in the process of delivering this particular consignment of “Ice”, the subject-matter of Count 2, to someone else for money.

29.  He points out that, unlike the position in Lee Fuk Hing, the judge in this case did give the standard direction concerning the right of silence in the context of the applicant’s declining to say anything when questioned by the police.  The judge said this:

“The prosecution has produced, without objection from the defence, evidence that the accused said, when questioned by the police, that he had nothing to say. In other words, he exercised his right to silence, as he was entitled to do. His having done so does not advance the prosecution’s case. It is not to be held against the accused in any way whatsoever. The exercise of the right to silence does not amount to an admission of any kind, nor can it be taken to reflect a guilty conscience.”

30.  Furthermore, lest there be any residual danger of the jury not appreciating that the exercise of the right of silence, which the judge told them was “not to be held against the accused in any way whatsoever”, also attached to his answers elicited during the impugned cross-examination, Mr Cheng points out that the judge went on specifically to tell the jury that:

“The cross-examination directed to his not having told the police where he kept his drug-taking equipment does not help the prosecution since the prosecution does not dispute that the accused did consume drugs.”

Accordingly, Mr Cheng submits that from the limited compass of the impugned questions and answers, which were not taken further by either counsel, from the proper direction given by the learned judge as to the law governing the right of silence, and from the practical way in which the learned judge dealt with this aspect of the cross-examination in her summing-up, there was no danger of the applicant’s failure to tell the police where his equipment was kept being a “source of entrapment”, as that term is discussed in the authorities.

Consideration

31.  I agree with Mr Cheng’s submissions.  The position in Lee Fuk Hing was rather different from the present case.  In that case, the judge at trial had embarked on a series of highly irregular and inadmissible questions of the appellant, which so concerned counsel for the prosecution that he raised the matter with the judge at the conclusion of the appellant’s evidence.  The judge acknowledged that concern and directed the jury in his summing-up that they were to ignore his questions and the answers they elicited.  No direction explaining the right of silence was given. Accepting that a court could correct such an error in different ways, the Court of Final Appeal asked itself whether, by simply asking the jury to ignore and forget the impugned questions and answers, the judge had succeeded in rectifying his error, which impinged upon the reliability of the appellant’s evidence, a central issue in the defence case.  It held that he had not.

32.  As the Court in Lee Fuk Hing recognised, there are a number of ways that a judge, faced with inadmissible or prejudicial evidence, may correct any ensuing unfairness to a defendant.  In some cases, he might consider that in the overall context of the trial and the issues it presents nothing needs to be said or done about it, on the basis that the less said the better: in other cases, a careful explanation of why the jury must disregard certain evidence may be necessary.  In considering how the matter was dealt with in the lower court, an appellate court will bear in mind that, where experienced counsel for the defence in a trial by jury, having had ample time to reflect on the matter, has not complained or sought the judge’s intervention or assistance, and counsel for the prosecution has not exploited the advantage or taken the matter any further, there may be good reasons for not interfering. In this regard, I would endorse the remarks made by this Court in the recent case of HKSAR v Tsang Man Kit (Unrep) CACC 234 of 2013 at para’s 33 - 35.

33.  In this particular case, prosecuting counsel did not mention the matter again in his closing speech.  Equally, defence counsel, who was well experienced in criminal trials, did not raise the matter with the judge either during the applicant’s evidence, or after cross-examination or before the summing-up.  He may well have reasoned that it was not advisable to complain to the judge in front of the jury because it would have drawn attention to the issue when his client had actually given quite a good answer. Furthermore, he may well have thought that it was not worth raising the matter at the end of cross-examination because, by then, the prosecution had accepted that the applicant was indeed an abuser of “Ice” and the issue of the whereabouts of his drug-taking equipment had become somewhat redundant.

34.  What defence counsel did do, as can be seen from the  passage quoted from his closing speech (see para 27 supra) was to invite the judge to remind the jury about the applicant’s right of silence, not in relation to the impugned cross-examination, but in the context of his declining to say anything when interviewed by the police.  And that is exactly what she did.

35.  However, the judge did not stop there and went on to direct the jury in terms that the cross-examination as to why the applicant had not told the police that his drug-taking equipment was outside his bedroom window, did not assist the prosecution, who now accepted that he did consume the drug “Ice”.

36.  Unlike the position in Lee Fuk Hing, the standard direction on the right of silence and its effect was given and explained to this jury in the summing-up.  Although it was not specifically directed to the questions and answers elicited in the impugned cross-examination, it was given in the context of the applicant’s declining to say anything when questioned by the police.  Moreover, the judge told the jury that in practical terms, the evidence in question did not help the prosecution: not that it might not help them, or that it was a matter for them whether the evidence helped them or not, but that it did not help them.  That direction came at the end of a passage in which the judge told the jury that the applicant’s account of being a drug user and not a trafficker was “unshaken in cross-examination”, that they were “to wholly ignore the cross-examination suggesting, by reference to his previous convictions, that the accused was dishonest” and that such previous convictions did “not help the prosecution prove trafficking”.

37.  In the circumstances, and viewing the summing-up as a whole, I do not consider that the irregularity occasioned by prosecuting counsel’s questions was material.  I do not accept that there was any real danger that the jury would have used the applicant’s failure to tell the police that his drug-taking equipment was outside his bedroom window against him; particularly when they had been specifically directed that the exercise of his right of silence was not to be held against him in any way whatsoever and when they had been reminded in terms that his testimony that he abused dangerous drugs was not in issue.

38.  I would add that it is somewhat surprising that defence counsel at trial never asked WDPC Chan whether the police had conducted a search outside the window; particularly when the defence being advanced was that the applicant had the drugs for his own use and when the applicant’s evidence, presumably in conformity with his instructions, was to be that the equipment for his consumption was not kept inside the premises but outside his bedroom window.  Mr McGowan candidly accepts that, had he been defence counsel and had he been in possession of those instructions, he would have done so.

39.  Some trial judges might have commented upon defence counsel’s failure to do so, in the light of the applicant’s subsequent evidence. Had they done so, the imputation that this was something recently made up by the applicant in cross-examination would not have been dissimilar to that which Mr McGowan contends arose out of the impugned questions and answers of prosecuting counsel in cross-examination.  No such comment was, of course, made by the judge in this case: indeed, the summing-up was extremely favourable to the applicant’s case and evidence throughout, as the earlier excerpts to which I have referred make clear.

40.  Finally, although this is not in any way determinative of the issue but merely tends to confirm the way I look at the resolution of the matter in this particular case, if this irregularity in the course of the trial were so material, it did not prompt defence counsel to raise his concern at any stage of the trial, nor did it occur to appellate counsel until we effectively invited him to take the point.

41.  If I am wrong in characterising the error as an irregularity, but not a material irregularity, I would have applied the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221 to this ground.  I do not accept the contention that the judge was required to repeat her direction on the right of silence and specifically explain its effect in relation to the impugned evidence, or any other evidence to which it also had relevance.  Even if she had done so, I cannot see that it would have made any difference to the verdict.

42.  In the ultimate analysis, I do not think that the point can succeed.  Accordingly, I would grant leave to appeal against conviction on the further ground of appeal but dismiss the appeal.

Grounds of appeal against sentence

43.  Mr McGowan advances essentially three grounds on the applicant’s behalf in relation to sentence.  First, it is said that the discount which the judge gave of one year for the applicant’s possible consumption of some of the “Ice” was not enough.  Secondly, it is submitted that the starting point for sentence on Count 1, namely two years’ imprisonment, reduced to 16 months for plea, of which one year was ordered to run consecutively to the 6 years’ imprisonment on Count 2, was manifestly excessive.  Thirdly, it is pointed out that due to a failure by the prosecution to inform the judge prior to her sentencing on 1 August 2013 that the sentence which the applicant was currently undergoing for possession of false instruments, contrary to section 75(2) of the Crimes Ordinance, Cap 200 had been successfully appealed against and reduced, resulting in his completing that sentence on 3 May 2013 rather than on 2 September 2013, as she was erroneously led to believe, her stated intention of making her sentence of 7 years’ imprisonment run concurrently with the earlier imposed sentence deprived the applicant of a period of concurrence as between the two sentences of one month and one day, ie the period between 1 August and 2 September 2013.

Consideration

44.  The first ground of appeal can be disposed of very simply.  The jury were never in fact directed that they should still convict the applicant of trafficking, even if they found that he was in possession of some of the drugs for his own consumption, as long as they were sure that he was trafficking in the remainder.  In such circumstances, the jury should be taken to have convicted the applicant of trafficking in the entire amount set out in the count.  The discount of one year imprisonment accorded by the judge on account of his addiction to “Ice” would, therefore, appear to have been unwarranted and to have derived from prosecuting counsel’s concession late in cross-examination, to which we have already referred, that the applicant was an abuser of “Ice”.  However, Mr Cheng does not take issue with the judge’s discount in the particular circumstances of this case and I am prepared to proceed on that basis.  Nevertheless, no complaint can conceivably be made by the applicant about the one year reduction leading to 6 years’ imprisonment being imposed on Count 2, which seems to have been a very generous discount in the circumstances.

45.  The second ground, however, has more substance. The relieving of property of substantial value from a vulnerable, helpless person who is drunk, is a nasty, mean example of theft.  In some respects, it has similarities with the offence of pickpocketing, although there are differences.  Where it is committed by a person who has previous convictions for theft and dishonesty for the purposes of financing his drug addiction, it is a serious example of the offence which must be firmly discouraged.  That said, I consider in the circumstances that the offence would have merited, even bearing in mind these aggravating features, no more than 18 months’ imprisonment after trial.  If that be right, then the imposition of one year for his guilty plea on Count 1 consecutive to the 6 years’ imprisonment on Count 2 would effectively result in the imposition of wholly consecutive sentences, which would not have been appropriate on the totality principle.  Accordingly, I consider that 10 months of the sentence of imprisonment in respect of Count 1 should be made consecutive to the 6 years on Count 2, making 6 years and 10 months’ imprisonment.

46.  In respect of the third ground of appeal, it is a matter of considerable dismay to this Court that, despite the fact that the applicant’s sentence on the matter for which he was serving a previous sentence had been resolved by this Court on 10 May 2013 (see CACC 445 of 2012), the applicant’s criminal record prepared on 2 April 2013 was not updated by the time the judge came to hear mitigation and pass sentence on 1 August 2013; notwithstanding that there is a note on the criminal record to the effect that his application for leave to appeal against conviction and sentence for the offence concerned was at that stage pending, and that there was a period in this case of some five weeks between conviction (24 June 2013) and sentence (1 August 2013).  Consequently, neither prosecuting counsel, defence counsel nor the judge were properly informed as to the status of the applicant’s previous sentence at the time she came to consider sentence for these offences.

47.  We would remind prosecuting authorities that they are under a continuing duty to provide proper and accurate information to a judge about a defendant’s criminal record, particularly when it may well affect the order which a judge, who is about to impose a substantial concomitant sentence, makes.  Regrettably, that was not done and the judge’s stated intention to make her sentence concurrent to the remains of a previous sentence, which she thought was still in existence but which had in fact completed, was thereby rendered nugatory.

48.  In those circumstances, I am of the view that we should honour the judge’s intention and reduce the sentence by a further one month, which is what she would have achieved had she not been misled.  Rather than complicate the matter by ordering the sentence now to run from a certain date, that objective may be simply achieved in the circumstances by reducing further the consecutive element of the sentence on Count 1 to 9 months’ imprisonment, making an overall sentence of 6 years and 9 months’ imprisonment.  To that extent, this appeal should succeed.

Conclusion

49.  For the above reasons, I would grant the application for leave to appeal against conviction but dismiss the appeal. However, I would allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, I would allow the applicant’s appeal against sentence and reduce his overall sentence from 7 years’ imprisonment to 6 years and 9 months.

Hon McWalters JA:

50.  For the reasons which follow, I do not agree with the judgment of Macrae JA in respect of the further ground of appeal which concerns the right of silence.

51.  Whether the right of silence has been infringed in the way set out by the Court of Final Appeal in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 will always be a fact and context sensitive issue.  The question for an appellate court is whether what took place at trial infringed the right of silence and if so what is the consequence of that having occurred.  The prejudice that flows to a defendant is, as explained by the Court of Final Appeal in Lee Fuk Hing, that the right may become a possible source of entrapment when his exercise of it is used against him at trial, thereby rendering his trial unfair.  It will become a source of entrapment if the jury is encouraged or allowed to engage in an impermissible line of reasoning when assessing the guilt of the defendant or the credibility of his defence.  If such a situation is created then the second question arises of whether it has been rectified or neutralized by comments or directions of the judge so as to prevent it from adversely impacting upon the defendant’s right to a fair trial.

52.  Here there is no dispute that the right to silence was infringed and that the consequence was that inadmissible evidence was heard by the jury. According to Lee Fuk Hing the introduction into evidence of questions and answers which are inadmissible by reason of being an infringement of the right of silence may be both an error of law and a material irregularity which renders a conviction unsafe.[1] Whether, the introduction into evidence of the inadmissible cross-examination by the prosecutor was an error of law and/or a material irregularity in the circumstances of this case and, if so, whether the proviso can be applied requires an assessment of the seriousness of the infringement and the corrective action taken by the judge.

53.  Here the facts of the case are quite straightforward.  The applicant was observed stealing an iPad from a sleeping, intoxicated tourist.  When arrested for this offence he was searched and this led to the discovery on his person of the “Ice” the subject of the charge.

54.  The quantity of “Ice”, and all the circumstances surrounding the applicant’s possession of it, would have allowed an inference of trafficking but it was the applicant’s case that he was an abuser of “Ice” and that he had purchased a month’s supply in order to benefit from a lower price for a larger quantity. He pleaded guilty to the theft which he portrayed as simply an un-premeditated, opportunistic offence and pleaded guilty to possession only of the “Ice”.

55.  On his arrest, he exercised his right of silence and declined to answer any police questions.  Thus, the full details of his defence only became known when he testified at his trial.  Part of his defence was that he consumed “Ice” in the bedroom he occupied at his parent’s flat and the equipment he used to consume it was concealed outside his bedroom window.

56.  The police had in fact searched the applicant’s bedroom and the applicant was with them when this was done.  The applicant remained silent in the course of this search which produced nothing of any significance; ie no item that could be associated with the trafficking in, or consumption of, “Ice”.  It is unclear whether the police searched outside of the bedroom window as no question about this was asked of the police officer who was called by the prosecution to testify as to the search.  Nor was this officer recalled once the defence case became known.

57.  There was, therefore, no independent evidence to support the applicant’s case that he purchased these drugs for his own consumption.  The applicant had a criminal record, which he put into evidence, that supported him being a past abuser of dangerous drugs and a thief but he was totally dependent upon the jury believing his testimony in order to escape a conviction for trafficking. Clearly, revealing his criminal record was a bold tactic but it was no doubt done in order to make his testimony of being an addict who stole to fund his addiction and who had possession of the “Ice” for his own consumption, more credible.

58.  In cross-examining the applicant, the prosecutor sought to demonstrate to the jury that the applicant was dishonest and his testimony implausible. One of the areas on which he questioned the applicant in order to achieve these twin goals was why he did not tell the police who were searching his bedroom the location of the “Ice” consuming equipment.  The suggestion put to him was that he was lying about there being equipment for consuming “Ice” in his home and implicit in this suggestion was that proof of the lie lay in his failure to volunteer to the police the location of the equipment.  The cross-examination was as follows:

“Q. And the police, the lady officer who gave evidence, said that they didn’t find anything of significance.

A. Yes.

Q. So the police missed, they didn’t find the bottle and the pipes that you used to consume ‘Ice’.

COURT: That’s outside the window, outside the premises.

Q. Yes, outside, under the shade outside your window.

COURT: Under the air-conditioner, in the air-conditioner?

MR WHITEHOUSE: Yes, yes.

A. Yes. No.

Q. And you didn’t think of telling them that “This is where I consume my ‘Ice’ and this is the equipment I use to consume it”?

A. No.

Q. And why not?

A. Because they did not ask me.

Q. I suggest to you that this is completely untrue, that there’s no equipment in your home at all.

A. It’s true and equipment was there.”

59.  At the end of his cross-examination of the applicant the prosecutor accepted that the applicant was an abuser of “Ice” but did not otherwise refer to, and certainly did not withdraw, his earlier suggestion that the applicant was lying about there being “Ice” consuming equipment at his home.

60.  The following day, on 21 June 2013, closing speeches were made.  The prosecutor identified the issues for the jury as being only whether the applicant had the drugs for his own use or was trafficking in them.  The prosecutor then referred to the applicant having given evidence in support of his claim that the drugs were for his own use and invited the jury to disbelieve this claim.  The prosecutor said the reasons why the jury should disbelieve the applicant were two-fold. The first was because the applicant was “an utterly dishonest person” as proven by his five previous convictions for offences of dishonesty.  The second reason he suggested the jury should disbelieve the applicant was because of inherently implausible aspects of his evidence, and these the prosecutor then discussed.

61.  The first aspect of the applicant’s evidence to which the prosecutor referred was the applicant’s evidence that he left home on the day in question with more than $7,000 in his possession.  The prosecutor said:

“Now, to deal with the – his defence in a little bit more detail. In evidence yesterday – for the first time, I might say, members of the jury – he claims that he went out that morning with something more than $7,000 in his possession.” (Emphasis added)

62.  Although concerning a different aspect of the applicant’s evidence the prosecution was, again, clearly inviting the jury to take into account in assessing the applicant’s credibility the fact that the applicant had not advanced this explanation earlier. Of course, he could have only advanced it earlier if he had volunteered it to the police.  So the effect of the prosecutor’s comment is to say to the jury that one of the reasons they can disbelieve the applicant is because he did not tell the police his explanation as to how he went out that morning in possession of $7,000.  This also was an improper comment which should not have been made.  By not correcting it, the judge allowed it to have a reinforcing effect in the jury’s minds that a failure by a defendant to reveal his defence could be taken into account in determining the credibility of that defence.

63.  Later in his speech the prosecutor referred to the failure of the police to find any “Ice” consuming equipment in the flat.  This was presented by the prosecutor as another aspect of the applicant’s testimony that was not credible.  The significance of these comments by the prosecutor is that notwithstanding his concession, made at the end of his cross-examination of the applicant, that the applicant was indeed an “Ice” abuser, the failure of the police to find any equipment for the consumption of “Ice” was a matter on which he, the prosecutor, relied for the purpose of throwing doubt on the applicant’s claim that such equipment existed; a claim which just the previous day the prosecutor had suggested to the applicant was a lie because the applicant had not volunteered the location of the equipment to the police.

64.  The applicant’s counsel addressed the jury and then the court, 21 June being a Friday, adjourned to the following Monday for the judge to deliver her summing-up.  On that day, 24 June, the jury were sent out and on the same day returned their verdict.

65.  The only occasion when the judge made a comment in her summing-up that is relevant to this issue is when she commented on the prosecutor’s impermissible cross-examination.  She said:

“The cross-examination directed to his not having told the police where he kept his drug-taking equipment does not help the prosecution since the prosecution does not dispute that the accused did consume drugs.”

66.  I see a number of problems with this passage.  The first is that on my reading of it, it is more in the nature of the expression of a personal view rather than an unequivocal direction to ignore the evidence.  The judge’s summing-up is replete with expressions, even strong expressions, of personal views favourable to the applicant, yet by their verdict the jury clearly chose not to follow those views.

67.  The second problem is that the impugned cross-examination of the applicant was impermissible and the evidence was inadmissible.  What was required from the judge in respect of it was not a statement as to its probative value to the prosecution but rather a clear, unequivocal legal direction that the jury must ignore it, were not permitted to rely on it and an explanation for why this legal direction was being given.  The comment of the judge left the inadmissible evidence before the jury to make of it what they would.  There was no prohibition by the judge preventing them from relying on it as evidence and this meant there was no prohibition on them using it for the purpose of inferring guilt or of assessing the truthfulness of the applicant and the credibility of his testimony.

68.  The third problem I see with it is that notwithstanding the prosecutor’s concession that the applicant was an “Ice” abuser, the prosecutor was nevertheless relying on the failure of the police to find “Ice” consuming equipment as relevant to the applicant’s credibility.  This was how it was put by the prosecutor at the end of his impugned cross‑examination and this was how it was put by him in his closing address.

69.  On the evidence in this trial, where an inference of trafficking was available on the prosecution case, the credibility of the applicant was effectively the sole issue and key to him obtaining an acquittal to trafficking.  Consequently, anything which could impact on his credibility was necessarily going to assume great importance.  The thrust of the prosecutor’s cross-examination of the applicant, and of his closing speech, was that the applicant was a dishonest person whose evidence was untrue and implausible.

70.  Furthermore, part of the trial context was that the applicant was admitting he was dishonest insofar as he stole to fund his addiction and was pleading guilty to a charge of theft that involved taking advantage of an intoxicated tourist – not an attractive portrait of the applicant. Running his defence in this way was clearly going to render the applicant vulnerable in cross-examination and this made it incumbent on the judge to make sure that the cross-examination was fairly conducted.

71.  For these reasons I regard the introduction into evidence of the inadmissible cross-examination of the prosecutor as being, in the circumstances of this case, a very serious matter which, if left un-corrected, as it was, must inevitably impact significantly on the fairness of the trial.  In my view it was both a material irregularity and also an error of law.  The only question then is whether this is an appropriate case for the application of the proviso.

72.  Relevant to this question is the fact that the summing-up does contain the standard direction on the right of silence after the judge mentioned “that the accused said, when questioned by the police, that he had nothing to say.”  However, I can detect nothing in this short passage that would encourage the jury to think that a failure by an accused on other occasions to volunteer information about his defence could not be used by the jury when drawing inferences of guilt or assessing the credibility of a defence advanced at trial.  I am wary of assuming too much knowledge on the part of the jury and even more wary of assuming that they would not be tempted by the line of reasoning represented by the attractive rhetorical question “why wouldn’t an innocent man reveal his defence at the appropriate opportunity?”  Here the appropriate opportunity to reveal the location of the “Ice” consuming equipment was clearly the occasion the police were searching his bedroom.

73.  I am of the view that this passage containing the standard direction is not, on its own, sufficient to remove the risk that the jury might engage in an impermissible line of reasoning which could result in the right of silence becoming a source of entrapment.

74.  The evidence in this case was not overwhelming and the result could well have favoured the applicant, especially had the jury followed the extraordinary hints of the judge who all but directed them to acquit.  In this situation, I am not persuaded that had the inadmissible evidence not been before the jury that a reasonable jury properly instructed would, on the evidence, without doubt convict or inevitably come to the same conclusion.

75.  I would therefore allow the application for leave to appeal conviction and, treating the hearing of the application as the hearing of the appeal, allow the appeal.  I would quash the conviction and hear the parties on the question of retrial.

Hon Lunn VP:

76.  In the result, we grant the application for leave to appeal against conviction but, treating the hearing of the application as the hearing of the appeal, dismiss the appeal by a majority.  We unanimously allow the application for leave to appeal against sentence and, allowing the appeal, we quash the sentence of 7 years’ imprisonment imposed upon the applicant.  In its place, we impose a sentence of 6 years and 9 months’ imprisonment on the applicant.

[1]   Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at 623G, paragraph 63.