HKSAR v. LEE WAI-KEI

[English Translation – 英譯本]
CACC 150/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 150 OF 2015

(ON APPEAL FROM HCCC NO 4 OF 2015)

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REASONS FOR JUDGMENT

Hon Poon JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drug Ordinance, Chapter 134, Laws of Hong Kong.  The particulars of the offence  alleged that the applicant did on 6 August 2014, at Oi Lai Lane, Yau Oi Estate, Yuen Mun, New Territories, unlawfully traffic in 26.3 grammes of methamphetamine hydrochloride (commonly known as “ice”) contained in 27.6 grammes of a crystalline solid (“dangerous drug in question”).  The applicant pleaded not guilty to the charge but admitted possession of the drug for self-consumption, and he stood trial before Deputy High Court Judge S T Poon (“trial judge”) sitting with a jury.  On 21 April 2015, the jury returned a unanimous verdict of guilty; and the applicant was sentenced to a term of seven and a half years’ imprisonment by the trial judge on the same day.

2.  The applicant applied for leave to appeal against conviction on 7 May 2015.

3.  After hearing the application on 5 January 2016, this court granted leave to appeal, treated the application as the appeal itself, allowed the appeal, quashed the conviction and ordered the case be remitted to the Court of First Instance for retrial.  Here are the reasons for our judgment.

Prosecution case

4.  On 16 August 2014, at 2:08 am, the applicant pulled over a light goods vehicle GW2832 (“the lorry”) at the roundabout at Oi Lai House, Yau Oi Estate, Tuen Mun and then got off.  As the applicant walked and reached the ground floor of Oi Lai House, he was intercepted by the police and searched. According to the police officers who had intercepted the applicant, ie PW1 and PW2, when the applicant was walking after alighting from the lorry, he was holding a mobile phone in his left hand and his right hand was in a trousers pocket.  It was after the applicant had walked for ten odd metres that they intercepted him for a body search.  Eventually, the police found a re-sealable transparent plastic bag containing the dangerous drug in question upon searching the applicant’s right trousers pocket.

5.  After arresting the applicant, the police further searched and found HK$20.00 and a mobile phone from his person; and after that, the police also seized an electronic scale, sixteen re-sealable transparent plastic bags and a plastic spoon (“seized items”) from the lorry.  At that time, the seized items were placed on the front passenger seat of the lorry, and some of those re-sealable plastic bags had a red line, which were identical to the one found on the applicant’s person containing the dangerous drug in question.

6.  The expert for the prosecution stated that at the material time, the retail price of “ice” was HK$426.00 per gramme, and hence the total value of the dangerous drug in question was HK$11,203.80.  This expert witness also said that the price would be lower only for a bulk purchase reaching 1 kilogramme.

Defence case

7.  The applicant elected to give evidence.  Putting it simply, the applicant admitted possession of the dangerous drug in question but insisted that it was all to be kept for his own consumption and not bought for others or for resale.  The applicant did not dispute the circumstances of interception and search and the seizure of the dangerous drug in question, but did not agree the circumstances alleged by the police under which the seized items were found in the lorry following a search.

8.  The applicant said that he was a self-employed lorry driver engaging in the transportation business.  He earned about HK$20,000.00 to HK$24,000.00 per month.  He had come into contact with ketamine since 2008, and subsequently changed to consume “ice” in 2012.  Through the introduction by friends, he bought “ice” from a Mr Wong.  Initially, the applicant bought 0.7 grammes of “ice” from Mr Wong with HK$300.00 every other day.  His dosage of abuse later increased, and in around 2012 to 2013, on Mr Wong’s advice he changed the purchase pattern to buying 14 grammes with HK$4,000.00 or 28 grammes with HK$8,000.00 each time depending on his financial situation so as to eliminate the risk arising from frequent purchases.  The applicant also said that purchase of “ice” in such large quantities enabled him to reduce the expenses and 28 grammes could probably last him for about five weeks.

9.  On the day in question, the applicant had been paid a sum of HK$14,000.00 by the company “Sun Cheong” (transliteration) which cooperated with him in business.  Having got funds available, he decided to buy 28 grammes of “ice”.  He drove out.  Around 1:30 am, he finished the transaction with Mr Wong at Yau Oi Light Transit Station.  After that he, upon Wong’s request, gave him a ride to the car park outside Oi Lai House in Oi Lai Lane.  Mr Wong was seated at the front of the vehicle at that time.  After driving Wong to his destination, the applicant drove away and later pulled over at the Oi Lai House roundabout because of the need of using the washroom.  After the applicant had got off and was about to look for the washroom, he was intercepted and searched by the police and also arrested.

10.  As to the seized items, the applicant said that he had seen same type of re-sealable plastic bags and plastic spoon on board the vehicle but they were not on the front seat at the material time, and he did not see from where the police seized those items.  He explained that the plastic bags were samples provided by Sun Cheong (stationery company), and that he had upon the request of Sun Cheong showed those samples to customers such as fast food shops in passing at the time of delivery with no reward.  The spoon was also a sample.  The applicant said that he had never seen the electronic scale seized, and that the companies hired him for delivery sometimes also sent delivery workers to “go along on the lorry”, and those people left behind miscellaneous items without his knowledge on occasions.

11.  The applicant said that he had originally purchased the lorry but subsequently transferred its ownership to his friend Lee Chu Kei (transliteration) when he was in financial difficulty, and used it by paying a rent of HK$2,000.00 a month.  The applicant spent about HK$8,000.00 a month on consumption of “ice”.  After deducting the two sums of expenditure, namely rent of the lorry and “ice” purchase, he still had HK$4,000.00 left for his wife’s household expenses each month.  The expenses relating to the vehicle was about HK$4,000.00 per month and the balance was spent on living expenses such as rental.

Trial judge’s directions to the jury

12.  In summing up the facts of the case, the trial judge told the jury that the applicant had already admitted possession of the dangerous drug in question, and under such circumstances, the only dispute was whether such dangerous drug was for the purpose of trafficking.  The prosecution did not have direct evidence to prove the purpose of trafficking and relied on circumstantial evidence, namely the quantity of the dangerous drug in question, the applicant’s behaviour and the electronic scale, the transparent re-sealable plastic bags and the spoon allegedly seized from the lorry.  According to the prosecution, the only reasonable inference to be drawn was that the applicant possessed the dangerous drug in question for the purpose of trafficking; the items seized from the lorry were tools used by the applicant for separate packaging, resale and distribution of the “ice”.  The trial judge reminded the jury that before drawing inference from circumstantial evidence, they must be sure that such evidence had been admitted and was reliable, and that if the inference was not the only reasonable inference, no adverse inference could be drawn against the applicant.  The jury should consider the facts by applying their own common sense and experience in life instead of moral standards and values.  It was emphasised that their judgment must not be affected by personal views on this kind of offence.

13.  The trial judge also gave directions on proof, that is to say, the jury had to consider if there was sufficient evidence to prove that the applicant was in possession of the dangerous drug in question for the purpose of trafficking and if such evidence was sufficient to rule out other possibilities.  He reminded the jury that the burden of proof was on the prosecution, and the applicant did not have to prove his innocence.  The jury were the judges of the facts and were entitled to accept part of the evidence, to decide to believe any one of the witnesses including the applicant, and to accept all or only part of the evidence; and as to the facts in dispute, the jury only needed to decide the facts required to prove the charge.

14.  Regarding the applicant’s evidence, the trial judge directed the jury that it should be determined by applying the same standard as that used in the consideration of other witnesses’ evidence.  Even if the jury did not accept the applicant’s evidence, it did not mean that he was guilty. The jury had to consider if the prosecution evidence was sufficient so that they “were sure” the applicant was guilty.

15.  After explaining the definition of “trafficking” in law, the trial judge summarised the evidence of all witnesses and identified the differences between the prosecution and the defence in respect of the evidence and views for discussion, for example:-

(1) The applicant’s account that discount would be offered for bulk purchase of “ice” was inconsistent with the expert witness’ opinion.  The trial judge explained that reducing the number of transactions could lower the risk of being arrested; and it was not unreasonable to have a discount for purchasing in larger quantity (ie there was incentive for offering a discount to buyers);

(2) Two sets of research data on the quantity of consumption of “ice” were mentioned in the agreed facts.  The prosecution suggested that the quantity in the applicant’s possession exceeded what ordinary users needed, which was one piece of the evidence that the prosecution relied on to prove trafficking.  The trial judge reminded the jury that it was unsafe and unsatisfactory to reject the daily consumption alleged by the applicant on the sole reliance of one set of research data.  As far as the highest daily consumption was concerned, based on the higher figure in the two researches, the quantity of the dangerous drug in question could last him thirteen days only.  He asked the jury to consider if it was reasonable for the applicant to buy in such quantity for his own consumption; and

(3) The logbook of the lorry provided by the applicant was the record of recipients in deliveries for Sun Cheong’s inspection, and hence the absence of the name of Sun Cheong therein was nothing unreasonable, and it did not mean that the prosecution’s allegation lacked a ring of truth.

16.  The prosecution contended that the applicant had exaggerated his own financial condition, saying to the police that he had to give HK$3,000.00 to Lee Chu Kei per month, whereas he said in court that it was HK$2,000.00, and in addition there were contradictions such as the conflict between the applicant’s alleged urge to urinate at the material time and his request for water made to the police officers, and so on.  The trial judge said that the jury had to decide by themselves if the applicant was trustworthy.

17.  After briefly reviewing the submissions made by both sides, the trial judge finally reminded the jury that in considering whether the applicant’s evidence was to be accepted, they should pay attention to the fact that the applicant had no record of conviction at the material time and that he had all along been of good behaviour apart from being addicted to drugs.

Grounds of appeal

18.  Mr Wong Hay Yiu of counsel for the applicant has put forward three grounds of appeal:

(1) It is wrong for the trial judge to permit the prosecuting counsel to cross-examine the applicant on the antecedent statement taken from him by the police, which departed from the established legal principle;

(2) The trial judge has failed to give sufficient directions to the jury on how to deal with the applicant’s evidence and has omitted some important directions; and

(3) The trial judge has failed to give clear directions to the jury on the applicant’s good character.

The respondent’s position

19.  Mr Nicholas Wong, Senior Public Prosecutor (“SPP”) for the [respondent] agreed that the conviction was unsafe and unsatisfactory because of the first and third grounds of appeal.  However, in his view the second ground did not stand.

20.  This court shall discuss these three grounds one by one.

First ground of appeal

21.  Mr Wong of counsel submitted that the trial judge, despite the applicant’s objection, allowed the prosecution to cross-examine the applicant on the contents of the “antecedent statement”, namely the applicant had indicated to the police that he had to pay HK$3,000.00 each month as the rent of the lorry, in order to point out the inconsistency with the applicant’s testimony in court.  The prosecution also relied on this in the closing submissions to allege that the applicant had lied, challenging him that he had deliberately reduced the amounts in his expenditures so as to justify his financial ability to buy drugs.  Mr Wong of counsel contended that substantial and grave injustice was caused because the trial judge had permitted the prosecution to cross-examine the applicant on his antecedent statement.  He also cited the case of Law Chung Ki and Another v HKSAR (2005) 8 HKCFAR 701 to support his argument.  Bokhary PJ said at para 13 of the judgment that an antecedent statement was an uncautioned statement taken from an accused in order to inform the court of his antecedents for the purpose of sentence and that it was impermissible for prosecuting counsel to cross-examine an accused on such a statement.

22.  It was the position of Mr Wong, SPP that it was departing from accepted norms for the prosecution to make use of the “antecedent statement” to cross-examine the applicant on his testimony in court and for the trial judge to have permitted the prosecution to do so despite the defence objection.  Mr Wong, SPP also agreed that substantial injustice might be caused to the applicant when the trial judge directed the jury by inviting them to have regard on this evidence in their determination.

23.  That it is impermissible for the prosecution to cross-examine an accused on his “antecedent statement” is to ensure that uncautioned statements would not be admitted as evidence for the prosecution because admission of such evidence is in breach of an accused’s right of privilege against self-incrimination: see the judgment of the Full Court in Cheng Chung Yat v R [1970] HKLR 269, at pp 272-273.  The view of the Full Court was also approved by the Court of Final Appeal in Law Chung Ki and Another v HKSAR.  It was indeed wrong in law for the trial judge to permit the prosecution to cross-examine the applicant on his “antecedent statement”, which was prejudicial to the applicant; permitting the prosecution to make use of the inconsistency between the applicant’s “antecedent statement” and his testimony to attack his credibility and inviting the jury to make their determination in this regard when giving directions caused further prejudice.  Therefore, the first ground of appeal is established.

Second ground of appeal

24.  Mr Wong of counsel submitted that the trial judge only said the following in his summing-up: “There is no difference between [the applicant] and other witnesses, who should be judged by the same standard. Even if the jury does not accept his evidence, it does not mean that he is guilty, and it is still necessary to consider whether there is sufficient prosecution evidence so that [the applicant’s] guilt is certain”.  Mr Wong criticised that such directions were not sufficient because the trial judge did not follow 44A.1 of the Specimen Directions in Jury Trial and omitted an important direction, which was:“It is for you to decide whether you believe the evidence of the defendant,or whether such evidence may be true. … If the account given by the defendant is or may be true, then the defendant must be acquitted.”

25.  Mr Wong, SPP, nevertheless, said that although the trial judge had omitted to say “… if the account given by the defendant is or may be true, then the defendant must be acquitted,” he had said, “The defendant … in his testimony said that the ‘ice’ which was in his possession on that day was all for his own consumption … Members of the jury, if you believe that the defendant’s ‘ice’ was all for his own consumption, then the defendant must be acquitted of the charge of trafficking in a dangerous drug”; “the defendant does not have to prove his innocence…”; and “if it is not sure, then the defendant should be acquitted.”  Therefore, viewing the directions in its entirety, what the trial judge had said in the directions attained the overall effect of reminding the jury that the verdict should be not guilty if the account given by the defence might be true.

26.  In our view, the directions given by the trial judge, with respect, do have defects.  His directions as a whole did not tell the jury specifically that if the applicant’s account, namely the dangerous drug was for his own consumption, might be true, then the applicant must be acquitted of the charge of trafficking.  Even the passages referred to by Mr Wong, SPP are not sufficiently clear to the jury that they must return a verdict of not guilty of the charge of trafficking if they found that the defendant’s account might be true.  Therefore, the second ground is established.

Third ground of appeal

27.  Mr Wong of counsel said that the trial judge had only asked the jury to pay attention to the fact that the applicant “has a clear record and has all along been of good behaviour apart from being addicted to drugs”, but failed to follow 37.3 of the Specimen Directions to say “the defendant has testified in court, and as any man of good character, his good character supports his credibility”.

28.  Mr Wong, SPP agreed that was a reasonable ground of appeal since the trial judge had only asked the jury’s to “pay attention” to the applicant’s clear record but did not remind them that they should have regard to his good character as evidence in his favour in respect of credibility and propensity.

29.  It is an established principle in law that the mere absence of any previous conviction on the accused’s part does not of itself necessarily drive the court to give a good character direction and there cannot be any generalized set rule of practice (as to how to give directions) given the wide range and varieties of circumstances in which good character might come into play.  Whether such a direction is necessary depends on the actual circumstances of the case.  Where the central issue is the credibility of the accused and an inclination on the part of the jury to believe the defendant means in effect he is entitled to an acquittal, the court would generally give the good character direction; failure to do so may well render the judge’s directions unbalanced and unfair.

30.  In the present case, the applicant claimed that the dangerous drug in question was for his own consumption, and the central issue concerned was the credibility of what he said.  If the jury accepted that his account was or might be true, he must be acquitted of the charge of trafficking in a dangerous drug.  It was plainly inadequate that the trial judge had only reminded the jury to “pay attention” to the applicant’s clear record.  The third ground of appeal is therefore established.

Order

31.  In the light of the above reasons, this court has granted leave to appeal, treated the hearing as the appeal proper, allowed the appeal and quashed the conviction.

32.  Mr Wong of counsel objected to the case being remitted to the Court of First Instance for retrial on the ground that the circumstantial evidence was sufficient to prove that the applicant’s account that the dangerous drug in question was for his own consumption might be true.  Mr Wong asked this court to convict the applicant of the offence of possession of dangerous drug directly.  We do not accept Mr Wong’s suggestion because the circumstantial evidence was not, as he has suggested, sufficient to prove that the account of the dangerous drug in question being for the applicant’s own consumption might be true.  In our view, the issue of whether the dangerous drug in question was for the applicant’s own consumption or for trafficking should be determined by a jury upon considering all the evidence.  Therefore, the case is ordered to be remitted to the Court of First Instance for retrial.

Specimen Directions

33.  In the present case, the trial judge had twice failed to follow the Specimen Directions, thereby made errors in law.  This court must point out that although the Specimen Directions have no legal authority and do not mean to be a strait-jacket confining the court’s directions to the jury, they originate from authoritative precedents and precious experience accumulated by the courts over years, and do have extremely high referential value.  Generally speaking, unless it is in very exceptional circumstances, judges should make reference to and follow the Specimen Directions in directing the jury.  In using the Specimen Directions, judges are of course required to suitably adapt them to the circumstances of the individual case.