HKSAR v. YUEN CHEUNG MING, LEON

CACC 429/2015

[2018] HKCA 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 429 OF 2015

(ON APPEAL FROM HCCC NO. 25 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction on 26 November 2015 after trial by Deputy High Court Judge Wilson Chan, as he was then, and a jury of trafficking unlawfully on 26 August 2014 in 117 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing on 6 September 2017, at which the applicant was unrepresented, we granted him legal aid. At this hearing he was represented by Mr Trevor Beel. We allowed the application for leave to appeal against conviction and, treating the hearing of the application of the hearing of the appeal, allowed the appeal and quashed the applicant’s conviction, ordering that he be retried on the same count on a fresh indictment. Now, we give our reasons for judgment.

The trial

2.  There was no dispute that the applicant was observed by police officers in the early afternoon of 26 August 2014 as he stood at the rear of a blue BMW motorcar at an open space in Ma Tin Pok, Yuen Long.  Having apparently noticed the police officers, the applicant moved to the driver’s door of a nearby Toyota motorcar, which was stationary and unoccupied, but with the engine running.  A search of the Toyota motorcar by one of the police officers, PC 33627, revealed the presence of a blue plastic bag underneath the driver’s seat.  It was found to contain a transparent plastic zip‑lock bag, which in turn contained 117 grammes of Ice.  It was an admitted fact that the Ice had a retail street value of $50,694.

3.  It was an admitted fact that the applicant had purchased the Toyota motorcar from Mr Leung Ka Ho, who was called as a witness for the prosecution, for $15,000 in cash on 28 July 2014.  Thereafter, the applicant was the owner of the motorcar.  No fingerprints of relevance were discerned on the blue plastic bag or the transparent plastic zip‑lock bag which contained the Ice.

4.  Having been arrested and cautioned by PC 33627 at 13:54 hours following the discovery of the bag of Ice, the applicant replied “I have no idea what they are.  They are not mine.  I just bought the car.”  Subsequently, the applicant participated in a video recorded interview under caution at Yuen Long Police Station.  He said that both the blue BMW motorcar and the Toyota motorcar were his motorcars.  He had driven the Toyota motorcar from where it was parked in a car park nearby to where he lived in Hang Mei Tsuen at about noon that day to where it was found by the police officers.  He had come to that place in order to retrieve his possessions from the blue BMW motorcar, which he intended to have scrapped.  He said that, although he had bought the car about three weeks earlier, he had only driven it that day.

5.  Mr Leung Ka Ho testified that when he sold the Toyota motorcar to the applicant he handed him one key only.  He said that he did not leave any personal items in the motorcar.  The fluffy toys, the headrest cover and the cup holder were not in the car when he sold it to the applicant.

The defence case

6.  The applicant testified that he was 39 years old self‑employed decorator earning $20,000 to $30,000 per month.  He lived in Ha Mei Village, Ping Shan.  He had no knowledge of the presence of the dangerous drugs in his Toyota motorcar.  Having bought that motorcar on 28 July 2014 he had driven it to his home, where he parked it in a nearby car park.  He occupied a cockloft in premises in which the female owner also lived.  His girlfriend had access to his premises from time to time, for which purpose he had given her a key.  He left the key to the motorcar on a table to which both the female owner of the premises and his girlfriend had access.  In his absence, his girlfriend had placed various items, such as fluffy toys, a cup holder and a headrest, in the Toyota motorcar.

7.  On 26 August 2014, he had driven the Toyota motorcar to Ma Tin Pok from where it was parked near his home in Ha Mei Village, Ping Shan.  His girlfriend had accompanied him in part of that journey, but she had alighted before he reached Ma Tin Pok.  His purpose of going there was to retrieve his personal possessions from the blue BMW motorcar, which he intended scrapping that day.  The applicant testified that, as he approached the car park at Ma Tin Pok, he had seen two uniformed police officers.  They were distributing leaflets.  For his part, he disembarked from the Toyota motorcar and approached the BMW motorcar intending to remove the licence plate.  As he did so, he was approached by police officers and ultimately arrested.

8.  He denied that the blue plastic bag, which contained the zip‑lock bag containing the dangerous drugs, was his bag asserting “I have not seen it before.”  Similarly, he denied that the zip‑lock bag and its contents of dangerous drugs were his.  He had not seen them before. He had never looked under the driver’s seat before.

9.  The applicant accepted that, contrary to his account in his video recorded interview, he had driven the Toyota motorcar on four or five earlier occasions.  On two of those occasions, his girlfriend had been his passenger.  He explained that his limited use of the Toyota motorcar was because no vehicle licence fee had been paid.  He said that his account in evidence as to his previous use of the Toyota motorcar was the truth.  He explained the contrary account that he had given in his video record of interview:[1]

“ Because at that time, I had not seen that packet before. No fingerprints or DNA could be found on it, and I did not think I would be in trouble. Apart from this, I wanted to protect my girlfriend, therefore(,) I said that I did not drive anybody.”

Ground of appeal against conviction

10.  In the grounds of appeal against conviction advanced on behalf of the applicant, Mr Beel submitted that the judge had erred in directing the jury at the outset of his summing up that the “one central, crucial issue” in the case was: “Has the prosecution made us, the jury, sure that the defendant was in possession of the dangerous drugs in question?” [2]  That direction implied wrongly that proof of possession simpliciter was sufficient to establish the guilt of the applicant on the count of unlawfully trafficking in the dangerous drugs.

11.  Secondly, Mr Beel contended that in his closing speech to the jury, counsel for the prosecution had relied on matters that had not been established in evidence and had not been put to the applicant in cross‑examination. Thirdly, Mr Beel submitted that the judge had erred in failing to properly or adequately sum up the applicant’s case to the jury.  In particular, the judge failed to remind the jury of the applicant’s testimony that, as he approached the car park at Ma Tin Pok, he had observed two police officers in uniform.  In those circumstances, he had stopped the Toyota motorcar and alighted and set about dismantling the licence plates on the BMW motorcar.  Further, the judge failed to remind the jury that reliance was placed on that evidence in the closing speech of counsel for the applicant.  He invited the jury to infer from that the applicant’s undisputed conduct, which clearly attracted attention to himself, that he was unaware of the presence of the dangerous drugs underneath the driver’s seat in the Toyota motorcar.  Mr Beel submitted that in his summing up the judge was required to “…truly and accurately reflect the evidence and give a fair and balanced guidance to the jury”.[3]

The respondent’s submissions

12.  In his written submissions Mr Franco Kuan, for the respondent, submitted that, although the judge had told the jury at the outset that the “one central, crucial issue” for them to decide was whether they were sure that the applicant was in possession of the dangerous drugs, it was made clear in his subsequent directions that proof of possession of the dangerous drugs was only one of the elements of which it was necessary for them to be satisfied that the applicant was unlawfully trafficking in the dangerous drugs.

13.  Next, Mr Kuan submitted that there was no merit in the applicant’s contention that in the prosecution closing speech submissions had been made on matters that had not been established in evidence. The fact that the blue plastic bag containing the dangerous drugs found beneath the driver’s seat of the white Toyota motorcar might have been expected to move around during the movement of the vehicle and thereby make a noise was a matter of common sense.  Whilst it was accepted that in cross‑examination of the applicant it had not been put in terms that his ‘girlfriend’ did not exist, the cross‑examination had been conducted with a “raised eyebrow” as to her existence.

14.  Finally, Mr Kuan submitted that the judge had described the defence case sufficiently to the jury in his summing up.  There was no requirement that the judge repeat any part of the submissions made in closing by defence counsel.[4]  The trial was of short compass: the oral evidence at trial was adduced in three days only; speeches were made on the following day and the judge commenced his summing up on the day thereafter, sending the jury out to consider their verdicts on the following day.  Further, the judge had invited the jury to have regard to counsel’s speeches.[5]

15.  In his oral submissions, Mr Kuan submitted that, if the Court accepted that the judge’s failure to remind the jury of the relevant parts of the evidence of the applicant and PC 33627, to direct them to have regard to that evidence and to the related submissions of counsel for the applicant was an irregularity, nevertheless the Court ought to apply the proviso and dismiss the appeal.

A consideration of the submissions

16.  There is no merit in the submission that the judge had, in effect,directed the jury that proof of possession of the dangerous drugs simpliciter, was a sufficient basis to convict the applicant of unlawfully trafficking in the dangerous drugs.  Having directed the jury that the “one central, crucial issue” was whether they were sure that the defendant was in possession of the dangerous drugs, the judge went on to direct the jury: [6]

“ In this case, the prosecution alleges that the defendant possessed the dangerous drugs for the purpose of trafficking in it.

Members of the jury, you may not convict the defendant for trafficking on this basis unless you are sure the prosecution has proven, at the place and on the date alleged, that (1) the defendant possessed a dangerous drug in question; (2) the defendant knew they were dangerous drugs; and (3) the defendant possessed them for the purpose of supplying to another or otherwise dealing in or with the dangerous drugs.”

17.  For the reasons identified in Mr Kuan’s written submissions we are satisfied that there is no merit whatsoever in the submission that in his closing speech counsel for the respondent had relied unfairly and impermissibly on matters not established in evidence or not put to the applicant in cross‑examination.

The summing up: adequacy in respect of the defence case

18.  There was no dispute that PC 33627, who was in uniform, intercepted the applicant at Ma Tin Pok because he suspected that he was trying to steal the blue BMW motorcar.  That suspicion arose from the fact that he had seen the applicant trying to prise open the boot of that vehicle.  He was on a village patrol together with a sergeant and another police constable.  The sergeant was also in uniform and the other police constable in plainclothes.  Subsequently, having discovered the blue bag containing dangerous drugs beneath the driver’s seat of the white Toyota motorcar, PC 33627 arrested and cautioned the applicant for unlawfully trafficking in dangerous drugs.

19.  In cross-examination of PC 33627, the following succinct exchange ensued:[7]

“ Q. Officer, you’ve told us that on the day in question, 26 August 2014, you were patrolling the Yuen Long area?

A. Yes.

Q. It was a very warm day?

A. Yes.

Q. Part of your duties included handing out leaflets to the locals, to the kai fongs, the villagers?

A. Yes.

Q. Now, do you agree that you were -- you had to hand out leaflets was not mentioned in your witness statement?

A. Agree.

Q. Not mentioned in any of the materials provided to the defence?

A.   Agree.”

20.  In examination-in-chief, the applicant testified that as he drove his white Toyota motorcar into the car park at Ma Tin Pok he had seen police officers.  Then, the following exchange ensued:[8]

“ Q. Now, you just told us you first saw the police officers when you entered the car park?

A. Yes.

Q. How many did you see?

A. Two.

Q. How do you know they were police officers?

A. Because they were in uniform.

Q. Did you see what they were doing?

A. Distributing the leaflet.

Q. Now, what happened after you stopped your white Toyota in Ma Tin Pok?

A. Then he approached me.

Q. Where were you when he approach -- who is “he”?

A. Two police officers.

Q. Where were you when they approached you?

A. At that time, I was taking a flat-shaped screwdriver from my car for dismantling items.

Q. What did you intend to dismantle?

A.  To go to the blue BMW to dismantle the licence plate.”

21.  In the course of his closing speech on behalf of the applicant, Mr Albert Cheung adverted to the undisputed evidence of the applicant that he had seen two uniformed officers as he drove his white Toyota motorcar into the car park at Ma Tin Pok:[9]

“ Now, you will also recall the defendant’s evidence that as he drove into the Ma Tin Pok area, he saw two uniformed officers in the vicinity handing out leaflets. This is very significant. When the officers gave evidence, during examination‑in‑chief by the prosecution, he never mentioned anything about handing out leaflets. It was only during cross‑examination, when I suggested -- when I put to him that on the day he was handing out leaflets, that was when that evidence came out. He agreed with what I was saying.

I then put to him that the fact that he was handing out leaflets was not in any of the prosecution materials that has been provided to the defence. So how did I know about it? I wasn’t there, only inference is that it came from the defendant.

The significance is this. The defendant was found prying (t)he trunk of another -- of a vehicle. Surely, that is extremely suspicious. If a car belongs to you, you have a car key. You simply use the key to have -- to get access to the car. If you know that you’ve lost your car key, you will get someone in the automotive industry to open the door for you. You don’t simply go to a car in an open place and pry at it with tools. So he must have known that what he was going to do would have looked suspicious and attracted attention.

  Members of the jury, if you saw someone in the open space prying at the trunk lid of a car, you would probably report the matter to the police.  So with that in mind, the defendants, having seen two uniformed police officers walked past, notwithstanding that, he still parked his white Toyota in the vicinity, in the open space, and went about his business of trying to dismantle the licence plate on the BMW.  He knew it would attract attention.  Now, why would he do that if he knew that there was a bag of drugs in his car?  It simply does not make sense.  [Italics added.]

The summing up

22.  In his summing up, the judge reminded the jury of the evidence adduced at trial.  Of the evidence of PC 33627, he said:[10]

“ PW1 testified that he and two colleagues (two in uniform and one in plainclothes) were patrolling in the Yuen Long area. According to PW1, at that time he saw the defendant in the open area under a tree. He, that is the defendant, was using some tools to pry the truck lid of a blue private car, a blue BMW.”

23.  Subsequently, the judge set out the applicant’s testimony at considerable length, encompassing no less than seven pages of the transcript.  Of the circumstances in which the applicant came to be at the car park at Ma Tin Pok, the judge said of the applicant’s evidence:[11]

“ And then he testified as to this: “My car was at Ma Tin Pok on the day of the arrest.  I drove it from Ping Shan.  My girlfriend was the passenger.”  And then he said this: “On that day, I intended to scrap the vehicle.  She wanted to have joyride, and she asked me if I was free to drive her around.”  That was the reason why he said the girlfriend was with him.  “Upon reaching On Ling Road, she told me that she had engagement with somebody there, then there, she got off the vehicle, at On Ling Road in Yuen Long.  After dropping her off, she told me to go back to pick her up after completing the scraping of vehicle.  I then drove my car to Ma Tin Pok.”  That was his account of his girlfriend’s presence in the vehicle on that day. 

So what happened after he arrived at Ma Tin Pok?  The defendant said this: “After I stopped the white Toyota at Ma Tin Pok, he approached me.  Ie the two police officers approached me.”  “I was taking a flat‑shaped screwdriver from my car for dismantling items, to go to the blue BMW to dismantle the licence plate, because that car was about to be scrapped.”

24.  As is readily apparent, at no stage did the judge remind the jury of the evidence of the applicant that as he approached the car park at Ma Tin Pok in his Toyota motorcar he had noticed the presence of two uniformed police officers distributing leaflets but, nevertheless, had set about removing the rear number plate from the BMW motorcar.  Similarly, the judge did not remind the jury of the evidence of PC 33627 which confirmed the applicant’s evidence not only as to the presence of the police officers and the duties that they were carrying out but also of the fact that the information had not been disclosed in witness statements or otherwise to the defence.  That evidence was relevant to the inference that Mr Cheung asked the jury to draw from the applicant’s conduct at the Ma Tin Pok car park, namely that he was unaware of the presence of dangerous drugs underneath the driver’s seat of his white Toyota motorcar.  It was suggested that it was clear that the applicant would have been aware that his acts in respect of the BMW would have attracted attention, as indeed PC 33627 testified that they did.  It was in that context that Mr Cheung posed the question to which he provided an answer:[12]

“ Now why would he do that if he knew that there was a bag of drugs in his car. It simply does not make sense.”

25.  Clearly, the evidence on which Mr Cheung relied and the question he posed was relevant to the reliance of the prosecution on circumstantial evidence from which it invited the jury to draw an inference that the applicant knew of the presence of the dangerous drugs beneath the driver seat of the white Toyota motorcar and was in possession of it and that he possessed it for unlawful trafficking.  It was Mr Cheung’s submission that the evidence to which he pointed militated against the drawing of those inferences.  Mr Beel acknowledged that no complaint was made to the judge at the conclusion of the summing up of his failure to address the matters.

26.  In his summing up, the judge had said of the prosecution case:[13]

“ …the prosecution is relying on what is called circumstantial evidence to prove, (1) that the defendant knew it was dangerous drugs that he was in possession of; and (2) the defendant possessed them for the purpose of supplying to another or otherwise dealing in or with the dangerous drugs.

Members of the jury, it is not easy to have direct evidence of a particular person’s knowledge, object or intention unless that person tells you directly.  In most cases, you can only find this out indirectly, by considering all the circumstances and by drawing an inference.”

27.  Earlier, the judge had given the jury the standard Specimen Directions in respect of the drawing of inferences, during which he had said:[14]

“ ...in criminal cases, the inference you wish to draw must be the only reasonable inference that can be drawn from the proved facts. So, if from a set of facts which you find proved, there is a reasonable inference to be drawn against the defendant as well as one in his favour, then you must not draw the adverse inference.”

28.  There is no dispute that in summing up the evidence to a jury the judge has a duty to do so in a fair and balanced way.  That requires the judge to remind the jury of the salient features of the defence case.  That is all the more important when the prosecution case is strong, as it was here given that there was no dispute that there was a bag beneath the driver’s seat of the applicant’s white Toyota motorcar, containing 117 grammes of Ice, the street value of which was over $50,000, when he drove it to the Ma Tin Pok car park.

29.  Nevertheless, it is clear that in summing up a judge does not have a duty to repeat the submissions made on behalf of the defendant in the course of counsel’s closing speech.  His duty is to remind the jury of the salient features of the defence case.  That duty is not discharged merely by the judge inviting the jury to have regard to counsel’s closing speeches.

30.  With respect to the judge, we are satisfied that he ought to have reminded the jury of the evidence of both PC 33627 and that of the applicant as to the circumstances in which the applicant came to drive his motorcar into the car park at Ma Tin Pok and stop that vehicle.  Mr Cheung was entitled to describe the evidence as significant to the defence case.  That evidence was relevant to the jury’s consideration of whether or not it was permissible to draw the inference that the applicant was not only in possession of the dangerous drugs but also that he possessed them for the purposes of unlawful trafficking.  The judge ought to have given a direction to the jury to that effect.

31.  The observations in the judgment of Chan PJ in the Court of Final Appeal in Lin Ping Keung v HKSAR [15], with whom all the other judges agreed, albeit in the context of comments made by a judge in his summing up, are nevertheless apposite:

“ …what a judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury… As the Lord Chief Justice said in R v Marr (1990) 90 Cr App R 154 at p. 156:

It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, his nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge.”

32.  That statement is entirely consistent with the passage relied upon by Mr Kuan in the judgment of the Lord Chief Justice, Lord Goddard in the Court of Criminal Appeal of England and Wales in R v Clayton‑Wright:^[16]

“ The duty of the judge in any criminal trial… is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence…. and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence…”

33.  Although in all other respects the judge’s summing up was comprehensive and eminently fair, we are satisfied that the judge fell into error in failing to remind the jury of the undisputed evidence of the presence of uniformed police officers in the immediate vicinity of the car park and the applicant’s knowledge of their presence as he approached the car park in his white Toyota motorcar and to give directions as to its relevance.  Further, we are satisfied that the error was material.  We agree with Mr Beel that, in the particular circumstances of this case, having regard to the significance to the defence case of the evidence and the inferences that it was suggested could be drawn from that evidence, that it is not appropriate to apply the proviso.

Conclusion

34.  Accordingly, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the applicant’s conviction.  We were satisfied that Mr Beel was correct not to oppose the order that Mr Kwan sought that the Court order a retrial of the applicant.

Orders

35.  We ordered that the applicant be retried on the count of unlawfully trafficking in dangerous drugs on a fresh indictment, which is to be filed with the Court within 14 days hereof.  Further, we ordered that the matter is to appear before the Listing Judge for the fixing of trial dates within 28 days hereof and that an expedited hearing date be fixed.  Mr Kwan did not oppose an application that there be an order that the applicant have the costs of his trial and matters incidental thereto.  We were satisfied that that was the appropriate order to make.  Accordingly, we ordered that the respondent pay the applicant the costs of his trial and matters incidental thereto, to be taxed if not agreed.

[1] Appeal Bundle, page 173 D-F.

[2] Summing up, page 11 M-O.

[3] Lin Ling Keung v HKSAR (2005) 8 HKCFAR 52, paragraph 26.

[4] R v Clayton-Wright (1949) 33 Cr App. R. 22, at page 29.

[5] Summing up, page 42 H-J.

[6] Summing up, page 18 C-H.

[7] Appeal Bundle, page 150 K-P.

[8] Appeal Bundle, page 171 C-J.

[9] Appeal Bundle, pages 102 J – 103 B.

[10] Summing up, page 22 I-L.

[11] Summing up, page 35 I-R.

[12] Appeal Bundle, page 103 B.

[13] Summing up, page 19 F-L.

[14] Summing up, page 15 M-P.

[15] Lin Ping Keung v HKSAR, at paragraph 26.

[16] R v Clayton-Wright, page 29.