HKSAR v. CHAU YUI MING

CACC 441/2015

[2018] HKCA 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 441 OF 2015

(ON APPEAL FROM HCCC NO 339 OF 2015)

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J U D G M E N T

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Hon Macrae VP :

1.  In view of the Court’s disagreement in respect of the resolution of Grounds 3 and 4 of the applicant’s re-amended perfected grounds of appeal, I shall state my own views.

2.  I agree with Pang JA in respect of his reasons for rejecting Grounds 1 and 2 and nothing more need be said about them.  I also agree with his reasons for refusing leave to appeal in respect of the appeal against sentence.

3.  In resolving Grounds 3 and 4, it is important to see the argument against the evidence and the live issues at trial.  The prosecution case was from beginning to end that the applicant was trafficking in all of the drugs seized, both those in the sling bag the applicant was carrying outside the flat (what Pang JA terms the 1^st batch of drugs) and those in the bag on the table inside the flat (the 2^nd batch of drugs).  In support of their case, the prosecution relied on the applicant’s physical possession of the 1^st batch of drugs, his possession of keys to Room A, inside which the 2^nd batch of drugs were found, and his admissions to possession of the first batch upon arrest and both batches later in interview.

4.  The defence case was that none of the drugs belonged to him and he was never in possession of any of them; not even for his own consumption.  Such admissions as he was alleged to have made were either never said or were involuntarily made in response to various forms of oppression.

5.  The applicant elected to give evidence and it is significant to note that it was never his case that he was in possession of only the 1^st batch of drugs but not the 2^nd batch of drugs.  His case was that he never had possession of either.  Neither defence counsel nor prosecuting counsel sought to distinguish between his possession of the two batches of drugs during examination‑in‑chief or cross-examination of the applicant.  The approach of the prosecution was that the applicant was in possession of all the drugs: the defence account was that he was in possession of none of them.

6.  The first time that the possibility of the jury finding the applicant in possession of the 1^st batch of drugs for the purposes of trafficking but not the 2^nd batch came after the defence case had closed but before the closing addresses of counsel.  It was raised just after the luncheon adjournment on Friday, 11 December 2015.

7.  The impetus for the discussion came from prosecuting counsel, who was concerned that the jury might think that the applicant’s admission of possession of the 2^nd batch of drugs was to protect the woman, Wai Wai.  Accordingly, the jury might be satisfied that the applicant had the 1^st batch of drugs for trafficking, but not the 2^nd batch.  Prosecuting counsel’s answer to his own concern, however, was “the jury would only have to find that one of the quantities was in his possession or control, and that that possession or control was with his knowledge and was for the purposes of trafficking”.[1]

8.  Defence counsel immediately made clear to both the prosecution and the court that prosecuting counsel’s position was “directly contrary to what my submissions are going to be to the jury”.[2]  Both counsel then delivered their respective speeches to the jury, with prosecuting counsel adhering to his position and defence counsel adhering to his.

9.  Prosecuting counsel said this in his closing address :[3]

“ And if, even at the end of the day, in the face of what we say is strong evidence, strong, compelling evidence, you are satisfied only with regard to the drugs in the sling bag, you would then return a proper verdict of guilty to the charge that he is facing.”

10.  Defence counsel, however, addressed the jury as follows :[4]

“   … as I said, it’s only one charge. Before you can convict the defendant of the offence, you have to find that he was in possession and control of all those dangerous drugs for which he is being charged. If you find that he was in possession and control of the two bags and the sling bag, I submit to you that it’s insufficient to prove -- to find him guilty of all the dangerous drugs in the flat. You have to be sure that all the dangerous drugs belonged to him, that’s what he’s been charged with, all the dangerous drugs, not just the two bags -- not just the two bags of “Ice” in his sling bag, all of them, that’s what he’s been charged with. If you think the possibility exists that only those two bags in the sling bag was his, then I submit to you, you must find him not guilty.

   If you believe or it could or may be the case that you believe it is, or you find it could or may be the case that the drugs on the table in the little black bag belonged to Wai Wai, then you must acquit the defendant. It’s all or nothing. Just because he may have had two little bags in his bag doesn’t make him guilty of the whole lot, because then you can’t be sure -- you are not sure, if you find that it’s just the two and not the whole lot, there is a doubt, you must be sure, come to the conclusion -- the determination that they all belonged to him, and not, for example, just the two in his sling bag.”

11.  Later, towards the end of his speech, he returned to the same theme :[5]

“   Members of the jury, if, for any reason, you decide that the two packets of “Ice” that the police claim they found in the defendant’s sling bag was his, and only those two bags were his, then you must find him not guilty, before you can find him guilty of the charge, you must be satisfied beyond reasonable doubt that all the dangerous drugs that the police alleged in the indictment was his, before you can convict him. It’s all or nothing, not guilty.”

12.  Finally, defence counsel posed this question for the jury in his final remarks :[6]

“ Can you be sure the defendant was in possession of all those drugs?”

13.  The defence position was thus put emphatically and unequivocally.  Perhaps because of the strength with which defence counsel had put his position, the judge evidently considered the issue over the weekend and raised the matter with counsel at the commencement of proceedings on the following Tuesday, 15 December 2015, shortly before he was to begin his summing‑up. He said as follows :[7]

“I’ve given it -- I gave it some thought over on Friday evening. I’ve come to the conclusion, having read the authorities, that although I don’t quite agree with Mr Donald, I think the safest course of action given the state of the evidence and the way the prosecution has chosen to bring this case, that this is pretty much an all or nothing case.

…...

It will be very dangerous, I think, to start putting alternative scenarios to the jury when the case is being brought by the prosecution on the basis that all the drugs belong to the defendant.”

14.  To this statement of what the judge proposed to say in his summing‑up, defence counsel said nothing whatsoever.  I will return to that matter shortly.

15.  Accordingly, the judge summed up on the basis he had indicated, as follows :[8]

“ In his closing speech on Friday, Mr Donald said this is a case of all or nothing. If you come to the decision that the defendant did not possess the black bag, Exhibit P9, or the drugs in it for the purpose of trafficking but decided that he did possess the sling bag, Exhibit P4, and the drugs in it for that purpose, you would have to find him not guilty of the offence charged.

   In strict legal theory, that is an incorrect statement of the law. But if the prosecution has chosen, no doubt because of the evidence available to them when preparing for trial, to charge the possession of both the drugs the prosecution say were in the sling bag and the drugs which they say were in the black bag as one offence, I am directing you that if you come to that decision or conclusion, you should find the defendant not guilty of the offence charged. But in saying that, I want to remind you that just as much as it is the prosecution’s case that the defendant was in possession of both sets of drugs, it is emphatically the defendant’s case that he was not. The issue of him being in possession of just the drugs in the sling bag has not been a live issue in this trial.”

16.  In respect of that last remark, the judge was right: it was not the applicant’s case that he was in possession of the 1^st batch of drugs but not the 2^nd.  His defence was that he was in possession of neither.  Possession of one batch as against the other was therefore never a live issue at trial.

17.  The question remains, however, notwithstanding that it was never the prosecution nor the defence case that the applicant was in possession of part only of the dangerous drugs seized, whether the judge should have left this alternative scenario to the jury.  McWalters JA thinks it should have been and relies upon the judgment of the Court of Final Appeal in Ho Hoi Shing v HKSAR.[9]

18.  The case of Ho Hoi Shing was not, however, relied upon or addressed by either party at the appeal and we have not heard argument as to whether its principle extends to circumstances such as these, where, instead of an alternative verdict in law (as with manslaughter in place of murder, or indecent assault in place of rape), there is an alternative view of the facts but the same verdict in law.  The statement of Callinan J in Gilbert v R,[10] relied upon in the judgment of McWalters JA, and cited with approval at paragraph 23 of the Court’s judgment in Ho Hoi Shing, was, as in Ho Hoi Shing, made in the context of an allegation of murder and the possible alternative verdict of manslaughter.

19.  It must surely be commonplace for juries to take a particular view of the facts which may be rather different from the view promoted by the prosecution, yet convict as charged.  Since they are the finders of fact, they are routinely directed that what they make of the evidence and the facts is a matter entirely for them.  The appellate court’s function is, among other things, to determine whether the evidence amounted to the offence alleged in accordance with correct directions in law.  I myself think it unlikely that the Ho Hoi Shing principle extends to obliging the judge to canvass all possible permutations of fact in his summing‑up, including those not even put forward by the defendant in evidence, where the verdict would be the same in any event.  If that were the position, it could lead to our appellate courts being besieged with complaints that the judge did not articulate every conceivable factual scenario, even those not canvassed in evidence, notwithstanding that the verdict would have been the same.

20.  In this area of the criminal law, juries are routinely directed, particularly where there is a cocktail of different dangerous drugs in the defendant’s possession, that they do not have to be satisfied so that they are sure that the applicant was trafficking in all of the drugs in question, as long as they are satisfied that he trafficked in some of them.  In HKSAR v Yu Wai Nang,[11] for example, the Court approved what I understand to be a common direction in such circumstances :[12]

“ It is perfectly possible for an addict-drug dealer to intend to sell part of the drug in his possession and reserve the rest for his own consumption. Whether this is so is a question of fact for the jury. The prosecutor was entitled to advance this as a common sense proposition for the jury’s consideration. There was no cause for any interference by the judge, who correctly stated what the law is in this regard :

“ … I should tell you that it is not necessary for the prosecution to satisfy you that the defendant possessed the entire quantity of drugs, that is the 18.53 grammes of “Ice” for the purposes of trafficking. If you are satisfied that he was in possession of some of these drugs for the purposes of trafficking in them, that is sufficient for you to convict of trafficking. But if you are not satisfied that he was in possession of any of these drugs for the purposes of trafficking, or think he may not have been, then you must acquit him of this charge of trafficking but convict him of the lesser alternative of possession of drugs”.”

21.  In HKSAR v Wong Suet Hau & Another,[13] the Court, in the context of a defence of simple possession where the offence was trafficking, said this :[14]

“ The principle is of course well-established that where a part of the drugs referred to in a drug trafficking charge is proved to have been possessed by a defendant for the purposes of trafficking, this will be a sufficient basis for a finding of guilt on a charge of trafficking, even though a proportion of the same drugs is or may have been for the defendant’s personal consumption.”

Pausing here, this statement of the law provides the answer to Mr McCoy’s further extension of his complaint that, because of the small quantity of the ketamine component in the count, there was a possibility that it might have been for the applicant’s own consumption rather than trafficking and, therefore, there ought to have been a third count dealing solely with the ketamine.  However, it was the prosecution’s case that the applicant was trafficking in all the drugs inside the flat, including the ketamine: it was the defence case that he was in possession of none of the drugs, not even for his own consumption.  I can see no warrant for removing the ketamine into a separate count to cater for a possibility which was never canvassed in evidence and was neither the prosecution nor the defence case.

22.  In the case before us, the judge decided not to give the direction sought by the prosecution,[15] namely that the jury may convict even if they found that only some of the drugs particularised in the count were for trafficking, because he formed the view that “the safest course of action”, on the evidence and in the wake of counsel’s speeches, was to give an “all or nothing direction”; accordingly, he directed the jury in terms that if they were sure that the applicant was in possession for the purposes of trafficking of the smaller quantity of dangerous drugs in the sling bag, but not in possession for the purposes of trafficking of the larger quantity in the black bag in the bedroom of Room A, they must find him not guilty of the count on the indictment.

23.  Mr McCoy argues that it would have been difficult for the jury to obey the judge’s direction to acquit if they found that he was in possession for the purposes of trafficking of the contents of the sling bag only, because they would effectively be allowing him to go free. I do not agree.  The response to this submission derives from the trust we place in the jury system.  One of the most accepted expressions of that trust is to be found in the judgment of Lord Hope in Montgomery v HM Advocate,[16] itself a case of murder, in which he began by stating that:[17]

“ the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.”

24.  Lord Hope went on to cite high authority in Canada,[18] Australia[19] and Ireland[20] to the effect that the system of trial by jury must proceed on this assumption.  It may also be noted that this particular statement by Lord Hope has been specifically cited with approval in Hong Kong in the second Court of Appeal decision in HKSAR v Kissel.[21]

25.  In the Australian High Court case of R v Glennon, to which decision Lord Hope was referring, Mason CJ and Toohey J had emphasised that the law :[22]

“ proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence,”

and that :

“ to conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.”

26.  More recently, in Dupas v R,[23] also a murder case, the Australian High Court, comprising two current non‑permanent members of the Court of Final Appeal, added this gloss, that :[24]

“   the assumed efficacy of the jury system of which Windeyer J spoke, whereby the law proceeds on the basis that the jury acts on the evidence and in accordance with the directions of the judge, represents the policy of the common law and is more akin to a species of “constitutional fact”, in the sense of that term explained by Heydon J in Thomas v Mowbray.”

27.  In my judgment, as an appellate court, we must proceed on the premise that the jury will have faithfully abided by and obeyed the judge’s instruction.  For appellate courts to yield too easily to the notion that they might not is to erode trust in our jury system and ultimately to undermine our legal constitution.

28.  It follows that I cannot, with respect, agree with McWalters JA that what was put to the jury was “likely to confuse them as to the law and tempt them into over‑convicting the applicant”.  The jury were given a very simple direction, so as to avoid what the judge conceived to be the danger of confusion, which direction it seems to me they must have followed.

29.  I would add, although I would not suggest it is determinative of the issue, that the jury convicted the applicant of a count which included an allegation that he had also trafficked in 2.88 grammes of powder containing 2.08 grammes of ketamine, quite apart from the “Ice” component of the charge.  Yet, the ketamine was only found in the black bag in the bedroom of Room A: there was no ketamine found in the sling bag.  Quite apart from the judge’s direction to acquit if they found that he was not in possession for the purposes of trafficking in the black bag, it seems to me that they must have been faithful to the direction and convicted the applicant of both batches of dangerous drugs because they convicted him of trafficking in ketamine as well.

30.  More importantly, we must always remember that defence counsel had the conduct of the defence at trial.  Issues of how to deal with the charge, what lines of defence to pursue and what submissions to make were within his discretion as trial counsel.  He evidently decided that, in view of the way the prosecution were promoting their case, he would advocate an “all or nothing approach”.  He made a strong submission to the jury on that basis, as he made clear to the prosecution and the judge he would, which resulted in the judge agreeing to give the direction he did.  He did not invite the prosecution or the judge to split the count into two and, as I have observed, when the judge indicated what he proposed to do shortly before his summing‑up was due to commence, defence counsel said nothing whatsoever.  I have wondered why that should be, given that it is now suggested the direction was unfair and prejudicial to the applicant.

31.  If I may suggest the answer, defence counsel’s tactic was not to risk the jury convicting his client of part of the charge but to take the chance that they might acquit of the whole charge.  That was a bold line to take, but it was one accepted by the judge, because he directed the jury that if they were unsure of the applicant’s possession of the drugs in the bedroom, they must acquit altogether.  Unfortunately for the applicant, the jury convicted.  Nevertheless, the applicant took his chance and failed.

32.  I have myself practised as an advocate in the criminal courts of Hong Kong for well over 25 years.  I can imagine many defendants in my own experience who would have been more than willing to take the risk of being convicted of possession for the purposes of trafficking in all of the drugs particularised, rather than in just part of the drugs, in exchange for the chance of walking out of the dock altogether.  Defendants are keenly aware of the sentences they are likely to receive under various sentencing guidelines in Hong Kong, based as they are primarily upon the quantity of narcotic present in the drug seized.  Had the applicant been convicted of possession for the purposes of trafficking in the drugs in the sling bag only (22.6 grammes of “Ice”), he would have faced a sentence after trial of just under 8 years’ imprisonment, applying the relevant guidelines in HKSAR v Tam Yi Chun[25] arithmetically.  For all of the drugs in both the sling bag and the bedroom of Room A (85.70 grammes of “Ice” and 2.08 grammes of ketamine), he was looking at a sentence after trial of just over 11 years’ imprisonment.  In fact, he was sentenced to 10 years’ imprisonment.  To go for the chance of a complete acquittal at the risk of an extra 3 years’ imprisonment for the drugs in the bedroom on top of the drugs in the sling bag does not seem to me to be an unreasonable tactical gamble. Indeed, one member of the jury voted for a complete acquittal.

33.  However, the gamble having failed, the applicant now effectively complains about the tactic.  As McWalters JA puts it, “despite ‘having his cake and eating it’, the applicant did not get the verdict he wanted”.[26]

34.  I would agree that had the drugs been divided into two counts dealing with the 1^st batch and the 2^nd batch of drugs respectively, this point could not have been argued.  However, the prosecution took the view that the applicant was trafficking in all of the drugs and that was the charge they preferred.  The post-record of the applicant’s answer to caution upon arrest and the subsequent record of interview, which were both ruled admissible in evidence, would, in addition to his possession of the keys, have fortified the prosecution’s view that the applicant was in possession of all of the drugs.  The defence case was that the applicant was in possession of none of the drugs; not even for his own consumption.  That is how the battle lines were drawn on the evidence.

35.  The possibility that the applicant might have been in possession for the purposes of trafficking of only part of the drugs was first canvassed after the evidence concluded.  While it was never the applicant’s case that he was in possession of the 1^st batch but not the 2^nd, it was the defence who argued for an “all or nothing” verdict.  It seems to me that that must have been done for tactical reasons, with the obvious consent of the applicant.  Were it otherwise, defence counsel would have invited the judge to order the splitting of the indictment. Instead, the judge fell in with defence counsel’s approach, which ultimately failed before the jury.

36.  Even if defence counsel did not do what he did for tactical reasons, in my judgment we must proceed on the basis that the jury followed the judge’s direction that if they thought the applicant was only in possession of the 1^st batch of drugs, but unsure if he was in possession of the 2^nd batch of drugs, then they must acquit altogether.  I see no reason to think the jury would not have faithfully followed that direction.

37.  I would refuse leave to appeal and dismiss the appeal against conviction.

McWalters JA :

38.  I do not agree with the judgment of Pang JA in respect of grounds 3 and 4 for the following reasons.

39.  I accept that the resolution of these grounds come down to what it was the jury had to decide within the factual context of the case.  On the prosecution case the applicant was intercepted outside of a flat in physical possession of two packets of Ice.  Within the flat the police found a bag containing 11 packets of Ice and many small resealable transparent plastic bags.  Also within the flat there was an electronic scale.  The scale and the plastic bags are tools used for packaging drugs into retail quantities.

40.  Armed with a full confession to trafficking in both sets of drugs, unsurprisingly, the prosecution charged the applicant with unlawfully trafficking in respect of all the drugs.  However, to be able to prove their case they had to be able to link the applicant to the flat as he was not the tenant of it.  The tenant of the flat was a Thai woman called Wai Wai whom the applicant claimed offered prostitution services from the flat.

41.  To link the applicant to the flat the prosecution relied on admissions from the applicant that he was an occupant of the flat and that all the drugs in it belonged to him and from the fact that he was found in possession of keys to the flat.

42.  The applicant’s case was that all the admissions made by him were fabricated by the police and were involuntarily made.  No drugs and no keys to the flat were found on him and he only attended the flat from time to time to use the sexual services offered by Wai Wai.

43.  In discussing the evidence in his closing address for the applicant, his counsel, Mr R Donald referred to the existence of a number of possible scenarios.  There is no doubt that the applicant’s primary defence was an assertion that none of the drugs were his and this was Mr Donald’s first scenario.  But part of this defence was an assertion by Mr Donald that all the drugs belonged to Wai Wai.[27] This was Mr Donald’s second possible scenario.  If the jury found that either of these scenarios may be the truth then they would have to acquit the applicant.   However, Mr Donald, anticipating that the applicant’s evidence might not be accepted by the jury, devised a secondary defence to cover that eventuality.  This was his third scenario.  This secondary defence was that the drugs in the flat belonged to the woman Wai Wai and not the applicant but that the applicant did have possession of the drugs in the sling bag, perhaps having just purchased them from Wai Wai.[28]

44.  He could only succeed in persuading the jury of this third possible scenario if the jury concluded that they could not rely on the applicant’s admissions and also that they could not rely on the police claim that the keys to the flat were found on the applicant.  In respect of this latter point, it would be no great stretch to conclude that if the police had acted improperly in relation to the admissions then they may also have done so in respect of their claim that the keys to the flat were found on the applicant.  The fact that the keys were on a keyring to which was attached the image of a female cartoon figure was also used to suggest that it was a keyring that was more likely to belong to a woman rather than a man.

45.  There was other evidence that Mr Donald could rely on in support of this secondary defence or third possible scenario.  The first was that the drugs in the flat were found in a bag in the bedroom, on a table beside the bed, secondly, in addition to the Ice there was a quantity of ketamine, so small as to be consistent with it being for consumption rather than trafficking.  Finally, there were the facts that Wai Wai was both a drug abuser and also a convicted drug trafficker.[29]

46.  All these facts, which point to the possibility of Wai Wai being in possession of the drugs in the bedroom of her flat, were not in issue and, in isolation, are quite compelling primary facts from which an inference could be drawn that Wai Wai was in possession of the drugs on her bedside table.  That is why I do not agree with the dismissive way in which the judge dealt with this woman’s drug convictions.[30]

47.  Of course, there was very compelling evidence which stood in the way of drawing an inference that the drugs were Wai Wai’s and this was the evidence of the applicant’s admissions and of his possession of the keys to the flat.  If accepted, this was very strong, indeed overwhelming, evidence that it was, in fact, the applicant who was in possession of the drugs in the flat.  But this evidence was contested and it would be usurping the function of the jury for us to say that the jury would have to accept this evidence.

48.  It was, therefore, always a live issue in the case, arising from both the primary and secondary defences, that the applicant was not an occupant of the flat and that the drugs must have belonged to Wai Wai.  By his secondary defence strategy all that Mr Donald did was to add a variation to his primary strategy by introducing the alternative possibility that the applicant might have been in possession of the drugs in the sling bag, which drugs he may have purchased from Wai Wai.

49.  In fairness to the judge this secondary defence strategy would not have become known to him and the prosecutor until the end of the evidence. As an evidential alternative it was always a possibility that could arise if the jury rejected the police evidence of the applicant’s admissions and the finding of the flat keys but accepted their evidence as to the finding of the drugs in the sling bag.  But it was not until Mr Donald’s closing address that it became apparent that he would be inviting the jury to consider this as one of the possible “scenarios”.  The events unfolded in this way.

50.  At 2:31 pm on 11 December 2015, just before he commenced his closing address to the jury, Mr Laskey, the prosecuting counsel, raised with the judge his concern that the jury might have a reservation as to the applicant’s possession of the drugs in the flat.  The exchange between Mr Laskey and the bench is set out in paragraph 77 of Pang JA’s judgment.

51.  After this exchange the jury were called back into court and Mr Laskey addressed the jury in the course of which he told them :

“ And if, even at the end of the day, in the face of what we say is strong evidence, strong, compelling evidence, you are satisfied only with regard to the drugs in the sling bag, you would then return a proper verdict of guilty to the charge he is facing.”[31]

52.  Mr Donald then addressed the jury and what he told them was diametrically opposed to what had been said by Mr Laskey.  What he said is set out at paragraph 74 of Pang JA’s judgment.  The court then adjourned to 15 December 2015 when the judge commenced his summing-up.  What he said is set out at paragraph 76 of Pang JA’s judgment.

53.  Mr G McCoy SC, together with Mr Donald, appeared for the applicant on this appeal and it was his argument that it was at the stage that Mr Laskey recognised that it would be open to the jury to return a verdict of guilty only in respect of the drugs in the sling bag that he, Mr Laskey, should have applied to amend the indictment.

54.  There is no doubt that when Mr Laskey addressed the judge he was aware that, on the evidence, an alternative verdict was available to the jury and he had prepared his address to the jury with this in mind.  I agree with Mr McCoy that in order to deal with this situation Mr Laskey should have applied to amend the indictment by laying an alternative count of unlawfully trafficking in a dangerous drug, particularizing in that alternative count only the drugs that were in the sling bag.

55.  The relevant legal principles governing the duty of the judge in such a situation are set out in the judgment of Chan PJ in giving the judgment of the Court of Final Appeal in Ho Hoi Shing v HKSAR.[32] Those principles make clear that even though a case may be fought on a particular basis, here the primary defence strategy, if the evidence throws up other possibilities, such as the secondary defence strategy, on which a reasonable jury might return an alternative verdict, then the judge is obliged to direct the jury on their right to return these alternative verdicts.  This is so even if the alternative is inconsistent with the defence run by the defendant’s counsel.  The threshold requirement is that “the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it.”[33]  This threshold, the Court of Final Appeal said, is a low one.

56.  I am of the view, therefore, that, in the present case, there was a sufficient evidential basis for the legal principles of Ho Hoi Shing to apply.  That being so the judge had to direct the jury that they could return a verdict of guilty confined only to the drugs in the sling bag.  The simplest and most effective way of placing such an alternative verdict before the jury was to amend the indictment by laying an alternative count particularised in the way I have earlier suggested.

57.  Everyone in the court room, the judge included, recognised that the jury had to be allowed to consider the secondary defence strategy and, therefore, had to be directed in respect of it.  There was no suggestion that it was not properly before them and that they should be directed to ignore this as a possible scenario that could ground an alternative verdict.  The problem arose as to what direction to give only because the prosecution did not amend the indictment by laying an alternative count.

58.  As a result, Mr Donald was able to persuade the judge that with the indictment drafted as it was, with only a single count particularising all of the drugs, the case became an “all or nothing” case with only one verdict available, namely guilty or not guilty of the whole amount of the drugs.  He did this whilst at the same time trying to persuade the jury that, factually, it was not an “all or nothing” case and that they should harbor a reasonable doubt that the drugs in the flat belonged to the applicant.  Nevertheless, despite “having his cake and eating it”, the applicant did not get the verdict he wanted.

59.  The judge’s direction, though on its face favourable to the applicant, did not, in reality, leave the jury with the alternative verdict presented by the evidence.  The alternative verdict presented by the evidence would result in the applicant being convicted of trafficking but only in respect of the smaller quantity of drugs in the sling bag.  The effect of the judge’s direction, which he told the jury was wrong in law but which they nevertheless had to apply, and which contradicted the prosecutor’s statement of the law, was that they would have to acquit the applicant completely.

60.  Such a direction might be superficially attractive to the applicant, from where he sits in the dock, but the jury may react adversely to his interests by being placed in the situation of having to make such a stark choice.  As was said by Callinan J in Gilbert v R :[34]

“ It is contrary to human experience that in situations in which a choice of decision may be made, what is chosen will be unaffected by the variety of the choices offered.”

61.  In my view there was an alternative verdict available to the jury in respect of the drugs in the sling bag, the evidence in support of it having met the Ho Hoi Shing threshold. That alternative verdict was not put to the jury.  What was put to the jury was such as only likely to confuse them as to the law and tempt them into over-convicting the applicant.

62.  This is not a suitable case for the proviso as it is impossible to conclude how the jury might have reacted had the alternative verdict been properly placed before them.  As Chan PJ said in Ho Hoi Shing :

“ It is impossible to speculate how the jury arrived at their verdict, especially where they had not been directed on all the viable alternatives. The jury were entitled to have the entire picture and all the viable alternatives placed before them. Their approach to the evidence might have been different depending on the options they have been given.”[35]

63.  I would allow the appeal, quash the conviction and order a retrial.

Hon Pang JA :

64.  Before Deputy Judge Lugar-Mawson and a jury, the applicant was convicted after trial[36] of a single count of trafficking in 85.7 grammes of ‘ice’ and 2.08 grammes of ketamine.[37]  He was sentenced to 10 years’ imprisonment.  He seeks leave to appeal both his conviction and sentence, the latter being an out of time application.

THE PROSECUTION CASE

65.  Quoted below is an initial part of the summing up during which the Deputy Judge summarised the prosecution case to the jury.  I can scarcely do better than to adopt it :[38]

“ The prosecution’s case is this. They say that on 17 March of [2015], around 8.40, from the staircase between the mezzanine floor to the 1st floor of the premises in Fuk Wing Street, the first prosecution witness, that is DPC8627, saw the defendant leaving Room A on the mezzanine floor. He rushed forward to intercept him. He says the defendant was in the act of leaving and the door to the flat, or the unit, was not fully closed. The officer says that he shouted out ‘police’ loudly and that the defendant attempted to retreat back into the room.

The officer says that he interposed himself between the defendant and the door and caught hold of both of the defendant’s arms to prevent him from going back into the room. He says there was a struggle in the doorway and that the second prosecution witness, who is Detective Constable 8820, pushed the defendant and 8627 into the room. He says, that is 8627, that he and the defendant fell onto the floor. The defendant fell onto his back, face upwards, and 8627 was on top of him, facing him.

The third prosecution witness, DPC9684, assisted the first prosecution witness in subduing the defendant and 9684 told you that, in doing that, he half-knelt on the defendant’s thigh with his right knee. The defendant was subdued. He was hauled to his feet by 8627 and 9684 and 8627 handcuffed him behind his back.

Around this time, the second prosecution witness, 8820, enters the bedroom of Room A in the unit and finds a woman there. 8627 searches the sling-bag, Exhibit 4, which he says the defendant was carrying across his chest, and in it, 8627 says he found two packets of what he suspected to be dangerous drugs, and he arrested and cautioned the defendant. In reply, he says, the defendant said: ‘Ah Sir, I got the dangerous drug “Ice” for my own consumption. It was to be given to my friends’.

8820 searches the bedroom in the unit and, in the bedroom, he finds a black bag, which is Exhibit 9. It is opened and inside it suspected dangerous drugs in 11 packets, together with many small resealable transparent plastic bags, are found. The defendant is asked what the suspected dangerous drugs is and he is cautioned, and in reply, he says: ‘Ah Sir, the dangerous drug “Ice” belongs to me. It has nothing to do with my girlfriend’.

   The flat is searched.  The only other things that are found is what is called an 'Ice' pot and a pair of electronic scales.  The defendant is taken to Cheung Sha Wan Police Station and there he confirms the verbal admissions that he made earlier in the unit.  He is re-cautioned and he repeats his earlier admissions. Later, both at Sham Shui Po Police Station and back at Cheung Sha Wan Police Station on the next day, he is interviewed under caution and the interview is recorded on a video disk which we will see.  So that, in summary, is the prosecution case.”

66.  The black bag, one might add, was a flat zip-holder that was relatively small in size.  Together with the electronic scales and ‘ice’ pot, this bag was found lying on top of a makeshift bedside table in the bedroom.[39] It contained the bulk of the ‘ice’ (ten bags, 63.1 grammes) as well as all the ketamine in this case (one bag, 2.08 grammes).[40]  The rest of the ‘ice’ (two bags, 22.6 grammes) was in the sling bag.[41]  Respectively, the drugs inside the sling bag and the black bag are referred to as the 1^st and 2^nd batches of drugs in this judgment.

67.  With regard to his video recorded interviews, the applicant had, as at the scene, admitted to being the owner of all the drugs in question.  Categorically, he had stated that the 2^nd batch of drugs was his.  It had nothing to do with his girlfriend, he said.[42]

68.  To give the above statement context, a woman called Wai Wai was indeed present in Room A when the police gained entry.  She was the tenant of those premises.[43] Otherwise, the applicant’s full narrative was as follows: it was a few hours before his arrest that he had bought all the drugs in question, for his own consumption;[44] they included a quantity of drugs that he had purchased on his friend’s behalf,[45] these drugs were in any event all brought back to Wai Wai’s place which was also where he lived;[46] there, he consumed some of the drugs using the ‘ice’ pot;[47] the remainder of the drugs, he had “saved” in the black bag “for some other time”.[48]  Wai Wai, the applicant added, was a Thai sex worker whom he had patronised for some months;[49] she and two ladies whom he did not know were chatting when he returned to Room A with all the drugs.[50]

69.  Moving on in the same narrative, the applicant said he was “jobless”,[51] but had “won a soccer bet”, which was why he had a large amount of cash in his sling bag ($29,440).[52]  It was also why he could afford to purchase the drugs in bulk.[53]  He said the small empty bags in the black bag were for him “to separate and consume ‘ice’”,[54] whereas the electronic scales were for checking his purchase and to separate his own share of drugs.[55]  When asked why the quantity and packaging of the 1^st and 2^nd batches of drugs should be different, the applicant said it was because he had “separated them too”.[56]

70.  Apart from these mixed records of interviews, the prosecution had also called evidence on street value ($34,069 worth of ‘ice’, $340 worth of ketamine) and consumption (the ‘ice’ was good for 285.7 days’ use by one person).[57] Emphasising the fact that the applicant was caught leaving Room A with a sizeable quantity of ‘ice’, the prosecution case was that, in respect of the 1^st batch of drugs at least, the applicant was clearly trafficking.  In respect of the 2^nd batch of drugs, the applicant was exercising control and possession.  In any event, it was open for the applicant to be convicted on the basis that he was trafficking in the 1^st batch of drugs alone.  Precisely, the prosecution case was put to the jury in these terms (partly italicised for emphasis) :[58]

“ So leaving the premises in his sling bag, he has with him just under $9,000’s worth of drugs, that would be sufficient for personal consumption of one person for 75 days. And again, you may think that that does not mean personal consumption, it means trafficking. Prosecution say he had those drugs with him in his possession for trafficking, at least in part, and you don’t have to be satisfied that all of it was for trafficking, you must be satisfied that some of it was for trafficking.

Now, in relation to the rest of the drugs, they, as you know, are in the black bag you see. You can see it again should you wish to, P9, 11 small bags each containing drugs. That’s obviously a larger quantity, and that is on the table with the other items …...

Now, it is the prosecution’s case, they have always accepted that in the bedroom where that table was, with the items on it, was also Wai Wai. Prosecution invites you to consider that his admissions at the scene and in more detail so that you can actually watch him admitting in the video-recorded interviews, are to the effect those were not Wai Wai’s drugs, they were his drugs. They were his drugs. They were his drugs, for his personal consumption, and for a friend.

………

Again, that’s the evidence, the prosecution say, of him possessing or controlling at least those drugs that were found in the black bag - I hold up P9 - on the table in the bedroom.

You will receive directions, it won’t be today, and it may indeed not be till Tuesday morning, but you will receive directions, and I hope that I shall be right in saying the prosecution do not have to satisfy you that all the drugs were in his possession or control, and that they were, at least in part, for trafficking. They must satisfy you that some of the drugs were in his possession or control, and in part, for trafficking.

And if, even at the end of the day, in the face of what we say is strong evidence, strong, compelling evidence, you are satisfied only with regard to the drugs in the sling bag, you would then return a proper verdict of guilty to the charge that he is facing.”

71.  As an aside, the applicant had ‘lost his shield’ under section 54(1)(f)(ii) of the Criminal Procedure Ordinance and it was revealed that he had previous convictions for :[59]

“ …… theft, burglary, what is known as possessing false instruments …… a conviction for altering a vehicle registration plate and he has two previous convictions for possessing, just possessing, dangerous drugs.”

DEFENCE POSITION

72.  Directing his synopsis to the defence case, this is what the Deputy Judge said :[60]

“ The defence case is diametrically opposed. It is the defence case that the police have manufactured a case against him. In colloquial terms, they have fitted him up. He says that he had gone to Room A to have sex with Wai Wai, the Thai prostitute who lives there. He is one of Wai Wai’s regular customers. He had come across her six months before on an internet pornographic site and he had been there about once a week and estimates he had made about 20 visits to the woman.

He says, when he got there, there were two other women in the flat with Wai Wai and they were speaking in a language he did not understand. He says they then left and he was about to go and get a shower. He says at around or at the same time as the two women left, two men entered the unit and they said, ‘Police, don’t move’. On entering, they immediately handcuffed him behind his back and arrested him. He asked them why, and he says that one of the police officers says, ‘Don’t move the fuck of you’. He says he did not struggle. He says that one of the police officers asked him, ‘Where are those things kept?’. He did not know what the police officer meant and he saw that two other police officers had entered and gone into the bedroom. He was again asked, ‘Where are those things?’. He asked, ‘What are those things?’ and the two police officers then assaulted him. He described how; he says it was very forceful, it lasted between two to three minutes and there were about 20 to 30 blows.

Then he says he heard someone shout out ‘Something has been found’ and he says another police officer, it is the one who commanded the team, approached him and asked him if those things were his and he said ‘No’. He said the two police officers holding him then struck him again about 20 to 30 times, again for a similar period of time, two to three minutes. Again he was asked whether those things were his and he was struck again, and he was asked again for the third time and, after a little while, he said, ‘If you say those things are mine, then they are mine’. He was told to squat down and he did so and he was later taken back to Cheung Sha Wan Police Station.

He says that when he got to Cheung Sha Wan Police Station, the one who was in charge approached him. He told him to be a good boy and admit everything. He promised to give him bail and not press any charges against the woman Wai Wai. The defendant says, ‘I said nothing. I remained silent’. He says, ‘And then the two police officers wrote up everything and let me sign in their notebook. I wanted to read it but he said “What the fuck you want to read it for? Just get it down and go”’. He said he did not know what the contents of the notebook meant, he did not know what the contents were that he signed. He said he did not want to sign it but he signed it because he wanted to get bail and see a doctor. He wanted to see a doctor because he was badly injured as a result of the assaults by the police.

He said he agreed to take part in the first video-recorded interview because ‘he said he would let me be bailed out and not press any charges against the girl’. The Detective Sergeant said that at Cheung Sha Wan Police Station in that room. He said he did not want to take part in the video-recorded interviews. Later on, he went on to say - and I will deal with this later - that he was coached as to what he had to say in them.

The defendant told you in his evidence that the dangerous drug found in the sling-bag is not his and neither are the dangerous drugs found in the bedroom in the black bag.  He says the woman Wai Wai is not his girlfriend, that he does not live with her in Room A.”

73.  Further into the summing up, the jury was reminded of the evidence of the applicant’s brother.[61]  He spoke of sharing a flat[62] and running a small business together with the applicant,[63] no doubt to counter what was recorded in the police interviews.  Also revisited was the testimony of a doctor who noted,[64] and in court described, the applicant’s injuries upon the applicant’s remand into custody.[65]  It was recapitulated that the applicant had complained to CAPO,[66] and that two other women of Thai nationality were in fact intercepted outside Room A at or about the time of the raid.[67]  There was practically no contact evidence regarding any of the drug wrappings, the Deputy Judge added.[68]  Four months after the applicant’s arrest, Wai Wai was caught, and later convicted, of one minor trafficking offence, one simple possession offence and one possession of drug-taking apparatus offence.[69]

74.  In short, the defence position was that, not only was the applicant ‘fitted up’ by the police, but the drugs must have belonged to Wai Wai, now known to be a drug trafficker as well as drug user.  Contrary to the prosecution’s proposition, the defence also contended that, unless the applicant was trafficking in all the drugs in this case, the applicant must be acquitted of the offence as charged.  He could not be convicted on the basis of trafficking in either the 1^st or 2^nd batch of drugs alone.  Again, I set out what defence counsel had said to the jury in full (italics added for emphasis) :[70]

“ Now, the prosecution -- the defendant’s been charged with trafficking with all the dangerous drugs. One charge, trafficking all the dangerous drugs that were found by the police that day. And as I’ve mentioned before, according to the police’s version of events, two bags were in his -- two small bags of ‘Ice’ were in his sling bag as he left, the rest were on the table.

Now, before you can -- and as I said, it’s only one charge. Before you can convict the defendant of the offence, you have to find that he was in possession and control of all those dangerous drugs for which he is being charged. If you find that he was in possession and control of the two bags and the sling bag, I submit to you that it’s insufficient to prove -- to find him guilty of all the dangerous drugs in the flat. You have to be sure that all the dangerous drugs belonged to him, that’s what he’s been charged with, all the dangerous drugs, not just the two bags -- not just the two bags of ‘Ice’ in his sling bag, all of them, that’s what he’s been charged with. If you think the possibility exist that only those two bags and the sling bag was his, then I submit to you, you must find him not guilty.

   If you believe or it could or may be the case that you believe it is, or you find it could or may be the case that the drugs on the table in the little black bag belonged to Wai Wai, then you must acquit the defendant.  It’s all or nothing.  Just because he may have had two little bags in his bag doesn’t make him guilty of the whole lot, because then you can’t be sure -- you are not sure, if you find that it’s just the two and not the whole lot, there is a doubt, you must be sure, come to the conclusion -- the determination that they all belonged to him, and not, for example, just the two in his sling bag.”

75.  It should also be mentioned that, notwithstanding the clear evidence of the applicant that he had nothing to do with any of the drugs found, defence counsel took the unusual step of canvassing such “possible scenarios” as the applicant leaving Room A with the 1^st batch of drugs which he had purchased from Wai Wai,[71] or the applicant bringing to Room A the 1st batch of drugs which he intended to share with Wai Wai,[72] in his closing speech.  Thus casting Wai Wai as a possible owner of the 2^nd batch of drugs, but at the same time insisting that this was an “all or nothing” case, the defence sought to take advantage of the prosecution’s fallback position (see paragraph 70 above) without any evidential basis.

THE JUDGE’S DIRECTION

76.  As will become apparent from the latest, or Re-Amended Perfected Grounds of Appeal against Conviction (see later), the interlocking issues of the way in which the charge was laid (the “One Charge Approach”), the conflicting positions between the prosecution and the defence as to what sufficed as a basis of conviction (the “Conflicting Positions”) and the direction which the Deputy Judge proffered as a result (the “Corresponding Direction”) are all parts of a major area of contention in this appeal.  The substance of the first two issues having been explained in the above overview, it is constructive to set out below the Corresponding Direction :[73]

“ In his closing speech on Friday, Mr Donald said this is a case of all or nothing. If you come to the decision that the defendant did not possess the black bag, Exhibit P9, or the drugs in it for the purposes of trafficking but decided that he did possess the sling-bag, Exhibit P4, and the drugs in it for that purpose, you would have to find him not guilty of the offence charged.

   In strict legal theory, that is an incorrect statement of the law.  But if the prosecution has chosen, no doubt because of the evidence available to them when preparing for trial, to charge the possession of both the drugs the prosecution say were in the sling-bag and the drugs which they say were in the black bag as one offence, I am directing you that if you come to that decision or conclusion, you should find the defendant not guilty of the offence charged. But in saying that, I want to remind you that just as much as it is the prosecution’s case that the defendant was in possession of both sets of drugs, it is emphatically the defendant’s case that he was not.  The issue of him being in possession of just the drugs in the sling-bag has not been a live issue in this trial.”

77.  What actually gave rise to the Conflicting Positions, one might add, was the prosecutor’s attempt to adapt his case to what he surmised to be a likely take of the evidence by the jury and, as can be seen from the following exchanges, the Deputy Judge left it open to the parties to follow their own contrasting approaches in their final submissions :[74]

“ MR LASKEY: My Lord, before the jury are brought back in, may I just seek to address your Lordship to inform you of the way that the prosecution will put their case, not, I hope, because I’m wrong, but if your Lordship took a view that it was most unhelpful, your Lordship would have the opportunity to tell me so.

My Lord, primarily, obviously, the prosecution say that all these drugs were in the possession or control of the defendant, and that at least a part of them was for trafficking, possession for trafficking or one of the forms of activities involving trafficking - in this case, storage, weighing, packaging would seem to be the obvious ones.

COURT: Well, yes, I think possession for the purposes of trafficking.

MR LASKEY: Is the safest.

COURT: I think you’re complicating it when you try and differentiate it into packaging and storage, to be honest.

MR LASKEY: Very well, my Lord. That’s helpful as well.

COURT: Yes.

MR LASKEY: And I shall keep myself to talking about possession for the purposes of trafficking.

COURT: Yes.

MR LASKEY: And that, obviously, relies on not only what was found, but the admissions that were made.

COURT: M’m.

MR LASKEY: But, my Lord, having thought about this overnight, and perhaps a bit even before that, it is clear that the circumstances of the finding of the drugs does vary somewhat. As your Lordship knows, two packets were found in the sling-bag of the defendant that he was carrying as he was leaving the premises. So he is in direct, physical possession of those items, leaving in the latish evening with that amount of drugs in two separate packets and a large amount of cash.

In relation to the other drugs - as we know, 11 packets of drugs - they were found on the table in the bedroom of the unit that he was just leaving, but, of course, where the female was present, the woman Wai Wai.

He made admissions all the way along that these were his drugs and they were nothing to do with her, but it did seem to me, thinking through it, that if the jury took the view that it is possible that in so doing he was not, in fact, telling the truth, but was seeking to protect her, they might then have some slight reservation about the finding of the larger quantity.

My Lord, my point is that the jury would only have to find that one of the quantities was in his possession or control, and that that possession or control was with his knowledge and was for the purposes of trafficking.

COURT: Yes.

MR LASKEY: And that’s what I’m intending to say to the jury.

MR DONALD: My Lord, can I indicate at this stage that’s directly contrary to what my submissions are going to be to the jury.

MR LASKEY: Well, so be it.

COURT: Well, there we are.

MR LASKEY: There we are. Thank you, my Lord.

MR DONALD: Yes.

COURT: Yes. I will -- I’ll hear what you have to say to the jury.

MR LASKEY: I’m sorry, my Lord?

COURT: I think it -- I will hear what you have to say to the jury.

MR LASKEY: Yes, my Lord. I just felt that -- your Lordship has, in fact, obviously some days to think about how the jury are to be directed in a summing-up, but I felt I should just mention that.

COURT: Right, thank you.  Yes, that’s helpful.”

PROCEDURAL HISTORY

78.  Before going any further, it should be explained that, when this matter first became before this Court on 8 December 2016, it was apparent to us that one of the three grounds of appeal in the Amended Perfected Grounds of Appeal against Conviction was falsely premised on a wrong transcription of a certain question by the prosecutor.  It was also pointed out to the parties that because the 1^st and 2^nd batches of drugs were, even on the prosecution case, differently located, the One Charge Approach may be open to scrutiny and, depending on the result of that scrutiny, the matter may have an impact on sentence.  It was these observations of ours that led to the first adjournment and the eventual filing of the Re-Amended Perfected Grounds of Appeal on 27 March 2017.

79.  At the adjourned hearing on 30 January 2018, however, the question of whether the applicant was in possession of any keys to Room A was raised to no clear answer.  Given that there was no direct reference on the point whether in the summing up or anywhere else in the appeal bundle, it was thought necessary to adjourn the matter after the day’s sitting, with the direction that further written submissions, if any, were to be filed upon the parties completing their enquiry.  Despite the additional delay that this has incurred, this second adjournment has proved to be fruitful in that, via the parties’ submissions dated 20 March 2018 and 27 March 2018, it is now confirmed that a working set of keys to Room A was in fact found in the sling bag, the bag that the applicant was carrying.[75]

80.  As expected, this evidence was contested at trial on the basis that the police had planted those keys. But it does explain the comment in the defence final address that these keys were “a female person’s keys”.[76] It has also put in context the remark in the Deputy Judge’s summing up that there is “no reason why a man cannot have a key ring with a female cartoon character on it”.[77]  In any event, the significance of this piece of evidence is that, if accepted to be true by the jury, it would put the applicant in a position of unrestricted access to Room A which, in conjunction with other evidence, may impact substantially on the question of who had control and possession of the 2^nd batch of drugs.

THE APPEAL AGAINST CONVICTION

GROUNDS 3 & 4

81.  As explained, the three interlocking issues as identified above (see paragraph 76) are a major source of contention under the latest version of the applicant’s grounds of appeal. Mr McCoy SC, who represents the applicant here but not below, has the following complaints :

  Ground 3

“ The learned judge erred in failing to correct in his summing up a misstatement of law which the prosecutor had made in his closing submissions – that if the jury was satisfied only with regard to the drugs in the sling bag, a proper verdict of guilty in relation to all the drugs in the black bag would also be returned, which therefore allowed the jury to improperly convict the defendant on the particular way the charge he faced had been drafted.”

  Ground 4

“ The learned judge erred in failing to properly direct the jury on the distinct and different quantities and types of drugs found in both the sling bag and the black bag. By doing so, the learned judge allowed the jury to find the defendant guilty on the joint charge of trafficking methamphetamine hydrochloride and ketamine, despite not ever mentioning ketamine in his summing up.”

82.  When fully developed, Mr McCoy’s argument goes as follows: to begin with, the prosecution was justified to lay only one charge; but at the conclusion of all the evidence when the prosecutor became concerned that there may be different verdicts in respect of different batches of drugs, there ought to have been a splitting of the charge.

83.  The charge, Mr McCoy argues, should have been split into three vis-à-vis the ‘ice’ in the sling bag, the ‘ice’ in the black bag and the ketamine.  Separate treatment was called for in respect of the ketamine because, given its small quantity and other attending circumstances, it is unrealistic that any jury would find it to be for trafficking.  By indiscriminately grouping it together with part or all of the ‘ice’ in a charge of trafficking, however, the verdict would inevitably be predominated by the jury’s finding on the ‘ice’ with little or no regard for the ketamine.

84.  As things were, the problem with the ketamine is the problem of “latent duplicity” which subsisted equally in relation to the two separate lots of ‘ice’ (HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279 at para 131 – 137; Chim Hon Man v HKSAR (1999) 2 HKCFAR 145 at pp 161G – 162D; R v GNN (2000) 78 SASR 293 at para 32). Although they were sufficiently large in quantities to each give rise to the inference of trafficking, there was, as the prosecutor conceded, the possibility of the jury reaching different verdicts.  That notwithstanding, the prosecutor went on to advise the jury that if they were satisfied in respect of one then they can be satisfied as regards both, as it were.  That contradicted counsel’s own concession and was a misstatement of the law.

85.  Instead of correcting the prosecutor’s error, however, the Deputy Judge actually reinforced it by adopting a seemingly opposite approach.  In directing the jury that this was to be treated as an “all or nothing” case, he had in fact solidified the unfairness inherent in the duplicitous nature of the un-severed charge.  The applicant was at risk of being found guilty as regards the ‘ice’ in the sling bag only but, not countenancing the prospect of letting him off altogether, the jury might nevertheless disregard the Deputy Judge and convict him on all the drugs found, as charged (HKSAR v WWK [2011] 5 HKLRD 584 at para 19 – 20; R v Maxwell [1990] 1 WLR 401 at p 408F – G).

86.  Recognising the possible counter-argument that the Corresponding Direction was in fact favourable to the applicant, Mr McCoy goes on to submit that, however well-intentioned the Deputy Judge may have been, in giving a legal direction which would deprive the jury of certain verdicts, the Deputy Judge had wrongfully intruded into the fact-finding domain of the latter.  That, he says, is a material irregularity so fundamental that even the proviso under section 83(1)(c) of the Criminal Procedure Ordinance cannot salvage.

87.  Lastly, Mr McCoy raises the point that it is impossible to know whether the jury had made legally valid findings of fact in relation to each of the drugs seized, ie by a majority of at least five of their members, or if they were impermissibly divided (R v Brown (Kevin) (1983) 79 Cr App R 115).  It calls into question the whole validity of the guilty verdict.  This and the other problems mentioned above could have been avoided by splitting the one umbrella charge in this case (R v Courtie [1984] AC 463 at pp 472G – 473F).

Discussion

88.  I will begin my discussion on Ground 3 and Ground 4 with a brief analysis of the prosecution case as at the time when all the evidence was concluded, a good starting point of which would be the applicant’s video recorded interviews and various other oral and written admissions.  By that, I mean the extent to which the prosecution’s account of how some or all of these confessions had come to be given may, or may not, have been gainsaid by evidence.

89.  Take, for example, the doctor who examined the applicant.[78] Next to a “scratch” on the chest, he had found a number of bruises of different sizes over the applicant’s right arm and torso.  Because of their colour, however, his evidence was that these bruises could “predate the date of the offence” and although they could have been caused by fist blows, these bruises were “equally consistent with being caused by a fall to the floor in a struggle”.  Had the applicant been beaten as repeatedly as he claimed, that is, “60 times on the chest and abdomen while static”, he said he (the doctor) “would have expected to have found deep bruising on the [applicant’s] body”.[79]

90.  Of the same alleged assault in Room A, it is undisputed that the applicant’s complaint to CAPO was inconsistent with what he said in court at least insofar as it concerned the number of officers who attacked him.[80] The difference is between a single officer called “Fo” in the former, and two unnamed officers in the latter.  Further, as was pointed out by the Deputy Judge :[81] “No police officer who was called to give evidence has been asked if he had the nickname ‘Fo’ or if one nicknamed ‘Fo’ took part in the operation.”

91.  Just as the preceding matters are relevant to the question of possible police misconduct, the evidence of the applicant’s brother[82] on the applicant’s place of residence go to the parallel issue of truth and reliability of the latter’s video recorded interviews.  Of that evidence, it is interesting to note what the prosecutor had said; they were remarks which defence counsel had seen fit not to contradict in his final address :[83]

“ The only matters, perhaps, to finish off with the brother, Mr Chau Yui-cham …… was that the defendant was at home for four to five days, but remember, the younger brother was away himself, after getting his so-called massage up in China, so he would perhaps not be aware, particularly, of the comings and goings of his elder brother, because, again -- to this extent, perhaps, the younger brother was telling what was so obviously the truth, but -- or I think it was three adults and two children, 300 square feet in Shatin was a very small amount of space, and as he said himself, he was pretty keen to get away from there when he could.”

The baseline of the brother’s evidence remains, of course, that the applicant would spend only up to five days a week at home.[84]

92.  Lest it be thought that, in my view, the prosecution case on the confessions was above critical assessment, that is not so.  It has not escaped my attention that, in relation to the two Thai women who were intercepted outside Room A, there was sufficient reason to ask why, if they were approaching as opposed to exiting the premises, the officers who spearheaded the raid would have failed to see them, as was their evidence.[85] There were other issues such as why, having volunteered his confessions, the applicant should make a complaint immediately before a magistrate and later to CAPO.[86]

93.  The point is, these and many other matters which may be argued in favour of either side are well within the experience of the courts in Hong Kong.  I cannot see and have certainly not been told that, for some reason, the jury must have rejected the applicant’s confessions.  Judging from the outcome of the trial, I would rather think the jury had at least taken some of the out of court statements into account – unless one is content with the proposition that they had based their conviction entirely on the remainder of the evidence, which may or may not involve the impermissible approach that Mr McCoy has mooted (see paragraph 85 above).

94.  I prefaced the last-mentioned proposition with the word ‘unless’ because, for both the prosecution and the defence, their evidence on the ‘general’ and ‘narrow’ issues were interwoven.  Each of these opposing versions presented itself as one continuous and internally consistent account over those two issues so that, if the confessions were rejected as being derived from police misconduct, it is difficult to see how the jury may have accepted the officers’ assertion of finding the 1^st batch of drugs and the keys to Room A in the applicant’s bag.  Conversely, if the jury believed the officers to be telling the truth about the 1^st batch of drugs and the keys, it is not easy to think why they should have rejected their account of how the confessions were obtained.  I am not saying it is logically impossible: just difficult, speculative and highly unlikely; and if the jury did accept the confessions and what was stated therein about the drugs’ ownership, there could be no room for Mr McCoy’s moot situation to arise.

95.  Having covered the applicant’s confessions, the most incriminating evidence arising out of which was his professed ownership of all the drugs and professed residence at Room A, I turn to the rest of the prosecution case.  Again, unless they were disbelieved, the sum total of all the evidence of the prosecution witnesses (including expert witnesses) would be as follows :

(a)  The applicant had physical possession of the 1^st batch of drugs and he was on his way to convey it to another location.

(b)  The applicant had physical possession of the keys to Room A and it was in Room A that the 2^nd batch of drugs was found, lying open and unconcealed.

(c)  The quantity and street value of both the 1^st and 2^nd batches of drugs were substantial, the 2^nd batch being larger and more valuable but consisting essentially of the same drug as the 1^st batch.

(d)  When found, both inside the 2^nd batch of drugs and lying next to it were some common drug trafficking paraphernalia, namely, a large number of small empty plastic bags and one set of electronic scales.

In the absence of any admission, these facts were prima facie capable of giving rise to the inference of trafficking in respect of all the drugs seized.

96.  In making that observation, I am not unaware of the possible implications that this person, Wai Wai, may have on the prosecution case.  On the contrary, I have given that question much thought but am not in the end convinced that those implications were serious enough to have any real impact.  I say this because, in one view at least, Wai Wai was but a one-woman brothel operator who dabbled in drugs and who had struck up a relationship with a drug trafficker for a client.[87]  But if one recalls the police evidence that her client, the applicant, had the keys to Room A and was caught leaving those premises with a substantial amount of essentially the same drug as the drug inside, the forcefulness of this view or case theory is in fact fairly overwhelming.  The suggestion that Wai Wai owned the 2^nd batch of drugs to the exclusion of the applicant is plainly unrealistic.

97.  Thus completing my short review of the prosecution case as at the relevant time, it surprises me that prosecuting counsel should adopt the enigmatic position that he did.  It was as if counsel wanted to undermine his own case.  In my judgment, taking into account all the circumstances, the prosecution would have been justified to adhere to the One Charge Approach.  There was nothing to oblige them to “responsibly” change positions, as McCoy puts it.  I should also say that I do not see any objection to including the ketamine in one umbrella charge. Admittedly small in quantity, this drug was kept in the same bag as the bulk of the ‘ice’ which was undoubtedly for trafficking, together with a large number of small empty plastic bags.  Perhaps it was the last packet in stock, perhaps it was left there for Wai Wai by the applicant: but unless it is shown to be intellectually impermissible to posit that this drug was also for trafficking, there need not be any clear answer.  If, in the event of a conviction, it is pleaded that the ketamine was for self-consumption, it is no different from pleading that part of the ‘ice’ was for self-use.  It will not affect the charge but it may go to mitigate the sentence, as happens daily in our courts.[88]

98.  Once the correctness of the One Charge Approach is established, the main basis of Mr McCoy’s complaint falls away.  The latent duplicity point will lose its bite and it would be up to the applicant to differentiate between the 1^st and 2^nd batches of drugs for plea and defence purposes, if he so wished.  If not, then short of pleading guilty, the applicant would have to contest the trial as charged.  It was not an easy situation for the defence but there was no duty on the part of the prosecution to make it less so.

99.  The final question is, the jury having been exposed to the Conflicting Positions through counsel’s speeches, was the Deputy Judge wrong to give the Corresponding Direction?  With the falling away of the latent duplicity argument, I should certainly think that no prejudice of the kind anticipated had been incurred.  That disposes of Mr McCoy’s major attack.  Given the likely acceptance of the more crucial admissions in the confessions by the jury (see paragraphs 93 and 94 above), I should also think that the ‘Kevin Brown’ point would fail to get off the ground.[89]  The bottom line is, with the Conflicting Positions still awaiting resolution, the Deputy Judge had gone for expediency and came down with a direction that was entirely favourable to the defence.

100.  As was pointed out by the Deputy Judge, the assertion that this was an “all or nothing” case is incorrect.  To so describe the case would be to confuse guilt with the degree of culpability, as in the exact amount of drugs that one was trafficking (R v Peevey (1973) 57 Cr App R 554; Lo Kwong Hing v R CACC 593/1979). Instead, what defence counsel ought to have done upon the prosecutor indicating his intention to advance a fallback position was to address the court on the need then to accept partial verdicts, in which case the applicant’s interest would be protected, properly.

101.  As it is, no discussion of this kind ever took place.  The Deputy Judge adopted the “all or nothing” approach and enjoined the jury not to convict unless they were sure of the applicant’s guilt in relation to all the drugs in the charge.  In other words, what the defence wanted, the defence got from the court.  I do not see how there can be any complaint at this stage.  Neither do I see the Corresponding Direction as encroaching on the constitutional role of the jury.  Unlike some of the classic cases, the Deputy Judge did not point to the evidence and direct the return of a certain verdict.  What he had done was almost like explaining to the jury what constituted the offence.  But whether I am right on this point, the question of the proviso does not arise for consideration because again based on my earlier analysis, it is clear the jury was satisfied that the applicant was the owner of all the drugs seized.

102.  Ground 3 and Ground 4 are not made out.

GROUND 1

103.  Ground 1 reads :[90]

“ (a) The learned Deputy Judge wrongly exercised his discretion or alternatively, failed to exercise any discretion at all, under s54(1)(f)(ii) Criminal Procedure Ordinance Cap 221, to permit the prosecutor to adduce before the jury the entire and unedited criminal record of the Applicant which recorded 41 convictions between September 1986 to December 2012 for many different offences (including for dangerous drugs) and which thereby deprived the Applicant of a fair trial.

(b) Having permitted the previous convictions to be adduced, the Deputy Judge failed, at the time of the Applicant’s cross-examination, to direct the jury as to the limited use to which those convictions could be made.”

104.  Mr McCoy does not challenge the conclusion of the Deputy Judge that the applicant had ‘lost his shield’.  He stresses the importance of the further and separate discretion as to which of the latter’s previous convictions should be adduced and criticises the Deputy Judge for “summarily” ruling the “entire criminal record” of the applicant admissible.  Spanning over some 20 years, this record consisted of 41 previous convictions three of which were drug related (two for simple possession, one for trafficking).

105.  Mr McCoy acknowledges the admissibility of previous convictions for identical and cognate offences (R v Burke (1985) 82 Cr App R 156; R v Powell (1986) 82 Cr App R 165; R v Lok Kin Pui [1987] 1 HKC 179; R v McLeod (1995) 1 Cr App R 591; HKSAR v Chan Hing Chi [1998] 1 HKLRD 184) but argues that the Deputy Judge was wrong to have allowed the drug related convictions to go before the jury.  He submits that, for the limited purpose of exposing the applicant’s character and undermining his credibility, the applicant’s previous convictions for dishonesty would have amply sufficed.

106.  It is further argued that the stale and trivial past convictions should have been disallowed because first, these convictions are more likely to be prejudicial than probative and second, the sheer number of the applicant’s past convictions would otherwise “swamp the limited value” of their use.

107.  Finally, the Deputy Judge is criticised for not warning the jury of the limited value of these past convictions at the time of the applicant’s cross-examination.  By leaving it until his summing up, the Deputy Judge had allowed these convictions to weigh impermissibly on the minds of the jurors for much longer than was necessary.

Discussion

108.  The application to invoke section 54(1)(f)(ii) was indeed swiftly granted.[91]  But the prosecution had never got beyond putting to the applicant that he had “a history of drug taking”[92] when the cross-examination was broken by a lunch adjournment after which the defence renewed their objection particularly as regards the drug related convictions.[93]  More importantly, when faced with defence counsel’s accusation, namely “you very quickly acceded to [the prosecution’s application] without even looking at what the previous convictions are”, the Deputy Judge refuted them instantly by saying, “You must have expected the application that they’re making,” and “I have [looked at the applicant’s previous convictions], they are in my fold.”[94]  Towards the end of the additional arguments, it was further stated by the Deputy Judge that :[95]

“ I know your position, I am fully aware of your position, I am fully aware I have the discretion, I am fully aware of the authorities, because I have read what you’ve put before me. I’ve also read Hong Kong Archbold and the English Archbold before this application was made, because I anticipated it would be made, and I am perfectly satisfied this is a fit and proper case for me to commit the prosecution to place before the jury, by way of cross-examination of the defendant, his previous convictions.”

I do not think it can fairly be said that the Deputy Judge had acted summarily against the applicant’s interest.

109.  In terms of merits, the Deputy Judge was right that “the whole of the defence case [was one of] criminal conspiracy by the police to pervert the course of justice”,[96] whose detailed allegation went full range from the fabrication of evidence to the use of threats, inducements and a considerable amount of physical violence.  That being the case, but also because Wai Wai’s drug taking and dealing had been made matters of agreed fact which the defence relied on for their obvious implications, I am satisfied that the full spectrum of the applicant’s criminal record could fairly be put before the jury – except for his one conviction for trafficking which, in any event, the prosecutor had offered not to raise in cross-examination.[97]

110.  When finally executed, the cross-examination was restrained and even-handed :[98]

“ Q. All right. Let me put to you directly. I was perhaps going to see if we could do it in some other way, but let’s put it to you directly. You have been in trouble with the police on numerous occasions involving dishonesty. Do you agree?

A. Yes.

Q. You were before the court back in 1986 for a robbery and resisting arrest of the police arising from the same robbery.

A. Yes.

Q. 1988, for theft, when you got a suspended prison sentence.

A. Yes.

Q. 1990 and 1991, again, for further offences of theft.

A. Yes.

Q. 1993, further offence -- occasions involving two thefts.

A. Yes.

Q. I’m sorry, that was in April of 1993. You were back for another theft in May of 1993.

A. Yes.

Q. And again in June of 1993, for using false instruments, another offence of dishonesty, and possession of a false instrument.

A. Yes.

Q. 1996, for going equipped for stealing, another offence of dishonesty.

A. Yes.

Q. 2003, for no fewer than six offences involving burglaries, again, and offences of dishonesty.

A. Yes.

Q. In 2005, for yet another offence of burglary.

A. Yes.

Q. More thefts in -- in 2012 and other -- and using a vehicle with forged identification mark. Again, offences of dishonesty in 2012.

A. Yes.

Q. You admitted to the police that you had consumed drugs that day because you had -- I suggest, because you had a drug habit. Do you agree or disagree?

A. Disagree.

Q. Do you agree you have in the past been convicted of possessing drugs?

A. Yes.”

111.  Given that and the Deputy Judge’s “strong” and “correct” directions on the subject (Mr McCoy’s own words), I do not see any cause for any complaint.  I am not persuaded that the Deputy Judge should have given the jury a contemporaneous warning, at least not in the circumstances of the present case.

112.  There is no merit in Ground 1 and it must fail.

GROUND 2

113.  This ground is self-explanatory :[99]

“ The learned Deputy Judge permitted the jury to take into account against the Applicant his right to silence, by validating that part of the prosecutor’s questions emphatically asked in cross-examination, as to why the Applicant had failed to volunteer an innocent explanation to the Police when questioned after having been arrested and cautioned.”

114.  Below is the section of cross-examination which leading counsel says is problematic :[100]

“ Q. And the only person living in Room A at that time was Wai Wai.

A. Yes.

Q. You see, help us about this. If those things are all correct, which I think you say they are, when the police say ‘To whom do these drugs belong?’ Why not say, ‘Well, not me, it must belong to Wai Wai’?

A. Well, it was not mine, but I had no idea whether it belonged to Wai Wai or not?

Q. Who else could they belong to?

A. I have no idea.

Q. But surely, it must have gone through your mind. They are not yours, you’ve never seen them, you never had anything to do with them, and they are found at the flat, they’ve got to belong to Wai Wai.

A. No idea.

Q. And a further clue to that is to be found in what you knew to be the ‘Ice’ pot. Is that right? Let’s look at photograph 14, and you’re welcome, of course, to have it. And can we have the ‘Ice’ pot, please? If you need to look at it, again, it’s in this bag. 12, I am sorry, I believe it’s P12. Now, you tell your own counsel that you had seen Wai Wai smoking from that pot, is that right?

A. Yes.”

115.  Next, we have the impugned passage of summing up :[101]

“ Mr Laskey posed several rhetorical questions to you on Friday and there are one or two I would like to go through and deal with. Why did the defendant go to Sham Shui Po for sexual services? He said he found Wai Wai on a pornographic site. Mr Laskey said, well, if he was just going there to see a prostitute, why go to all the trouble of going over to Sham Shui Po, there must be prostitutes in Yuen Long and Sha Tin. The defendant must have known that Wai Wai was an “Ice” user because he said in cross-examination that he has seen the “Ice” pot in Room A on every visit to Wai Wai and that he had seen Wai Wai and her friends use it. Mr Laskey posed the rhetorical question why, when he was asked about the dangerous drugs back at Unit A, why did he not say something like ‘It’s not mine, it must be Wai Wai’s. I’ve seen her use the drugs in this flat before’.”

116.  For general principles, Mr McCoy relies on Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 and “subsequent cases”.

Discussion

117.  I set out below eight more questions and answers which immediately preceded the section of cross-examination that has been quoted in paragraph 114 :[102]

“ Q. Right. And when questioned, which again, we’ll come to a little later, you were at pains to tell the police that these drugs were yours and not Wai Wai’s. Now, firstly, do you agree that you said something like that?

A. After I -- when I’ve suffered severe injury after the severe beating, I said that.

Q. Now, just suppose, for the moment, that you have been beaten up, which I do -- the prosecution do not accept, but suppose that you are right about that. Why then say that it’s got nothing to do with Wai Wai?

A. You mean inside Room A?

Q. Wherever, be it in room A or either of the police stations.

A. The police officers coached me to say that.

Q. So they are telling you to say that it’s got nothing to do with Wai Wai. Is that -- it doesn’t come from you personally, it comes from them telling you, is that your evidence?

A. That’s correct.

Q. And yet it’s your case that you want the jury to accept that these drugs do not belong to you at all, and you had nothing whatever to do with them, correct?

A. It’s -- in reality, it has nothing to do with me.

Q. Yes. You want the jury to accept your account that these drugs had nothing whatever to do with you.

A. Yes.

Q. You had never seen the packets of drugs before the police found them on the night of 17 March.

A. That’s right.

Q. But you accept that the police found the drugs, the packets, which turned out to be drugs in the premises at Room A. You accept that, don’t you?

A. Yes.”

118.  Reading the two sections together, it seems obvious that all the prosecutor was doing was to tax the applicant on the illogicality of his account of how he came to provide the answer which he did not deny eventually providing, namely “the drugs are mine”.  Of course, the applicant claimed he was brutally treated, but that begs the question as to why he had never protested that the drugs may belong to Wai Wai, then knowing for a fact that Wai Wai was a drug user.  That, clearly, was the point counsel was making.  It had nothing to do with infringing the applicant’s right to silence.  Likewise, when the Deputy Judge referred to the “rhetorical question” posed by the prosecution, he was simply repeating counsel’s submissions.  I do not think the jury could have understood it in any other way.  In the final analysis, the defence case was one and the same for both the ‘narrow’ and ‘general issue’.  The prosecution was entitled to attack it by showing where and why it did not make sense.  Ground 2 also fails.

THE APPEAL AGAINST SENTENCE

119.  It is submitted that, even if the appeal against conviction should fail, it remains a fact that the prosecution case was much stronger in relation to the 1^st batch of drugs so that the only safe basis for sentencing was in relation to that lesser quantity of drugs and no more.

120.  I do not think that is a tenable argument.  I have stated why, in my view, the jury must have found the applicant to be in possession of the 2^nd batch of drugs as well so, given its considerable quantity and value, there was ample justification for sentencing the applicant on the basis that he was trafficking in all the drugs seized.

121.  In my judgment, the applicant’s application for leave to appeal against sentence must also be refused and the appeal dismissed.

Hon Macrae VP:

122.  The application for leave to appeal against conviction is, by a majority, refused and the appeal dismissed.  The application for leave to appeal against sentence is also refused and the appeal likewise dismissed.