HKSAR v. HOANG GIA-HUAN

CACC 264/2018

[2019] HKCA 1324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 264 OF 2018

(ON APPEAL FROM HCCC NO 389 OF 2017)

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J U D G M E N T

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Introduction

1.  The applicant was convicted after trial before Deputy Judge Alex Lee (as he then was) (the judge), and a jury, of a single count of trafficking in a dangerous drug, namely 130.28 grammes of a crystalline solid containing 123.67 grammes of methamphetamine hydrochloride (commonly known as Ice).  He was sentenced to 12 years and 11 months’ imprisonment. 

2.  On 5 September 2019, the applicant filed a notice of application for leave to appeal against conviction and sentence.  He complained that he thought his conviction was unfair and his sentence was excessive.

3.  The applicant applied for legal aid which was granted in relation to his conviction appeal but refused in relation to his sentence appeal on 28 November 2018. 

4.  On 21 May 2019, perfected grounds of appeal against conviction were filed and signed by Mr James Sherry, of counsel.  There were two grounds of appeal but he has since abandoned the second one.  He appears for the applicant in his conviction appeal while the applicant appears in person in his sentence appeal.  At the commencement of the leave hearing, the applicant abandoned his leave application to appeal against sentence. Accordingly, the applicant’s appeal against sentence was dismissed.

The appeal against conviction

5.  The sole ground of appeal which Mr Sherry advances reads as follows:

“Without any evidence from the fingerprint expert PW5 to support the trial judge’s direction to the jury in relation to the absence of the Defendant’s fingerprints or DNA in the hut or on the exhibits that ‘it does not necessarily mean that the Defendant had not come into contact with anything inside the hut’, the trial judge gave a material misdirection which invited the jury to speculate as to whether the Defendant had come into contact with the plastic bags found to contain the Dangerous Drugs.”

The prosecution case

6.  The prosecution case was that in the evening of 7 December 2016, police officers went to a wooden hut in Sham Shui Po, Kowloon, and found the applicant sitting behind a table on which there were 38 packets of Ice, a quantity of empty resealable plastic bags and an electronic scale.  The applicant was the only person inside the hut at the time and he had in his possession $19,100 cash. 

7.  The estimated street value of the drugs at the time of the offence was $43,514. 

8.  In light of the circumstances, the prosecution alleged that the applicant was in possession of the Ice for the purpose of trafficking.

The defence case

9.  The applicant elected to give evidence in his defence. 

10.  The applicant’s case was that he went to the wooden hut to buy drugs and at the time there were 7 to 8 people present.  He said that he dozed off after having smoked some Ice and when he woke up he found that he was left alone in the hut.  He said that it was he who opened the door for the police officers and that the Ice in question was not on the table when they arrived.  He said that the police officers found the drugs in one of the rooms and he had nothing to do with the Ice.  He also complained that he was subject to threats and violence from the police.  He said he requested to see a doctor and to have medication which was denied and he was deprived of the right of a lawyer during his interview under caution.

The lack of fingerprints and DNA evidence

11.  It was an admitted fact at trial that:

“No fingerprints or DNA of the Defendant was found by the police in the hut or on the exhibits seized in the hut.”[1]

12.  When directing the jury in relation to the admitted facts, the judge told them that they must regard the facts as having been conclusively proved and could not be contradicted by other evidence.[2]  He went on to specifically discuss the above admitted fact:

“As regards the Admitted Facts about the absence of the Defendant’s fingerprints or DNA in the hut or on the exhibits, it does not necessarily mean that the Defendant had not come into contact with anything inside the hut. There is no issue, that means there is no dispute that the Defendant was inside the hut. As regards fingerprints, you have heard evidence of PW5 that not all things are suitable for fingerprint examination, and the Defence had not sought to challenge PW5’s evidence in this regard.

Of course, whether or not to accept this part of PW5’s evidence is a matter entirely for you. You may consider, and it is a matter entirely for you, that the absence of the Defendant’s fingerprints or DNA in the hut or on the exhibits may or may not assist either side.”[3]

The evidence of PW5

13.  At the trial of the applicant, an officer with the Fingerprint Division of the Hong Kong Police, Lui Chun Kong, PC 4459, (PW5), was called by the prosecution in relation to fingerprint evidence obtained at the scene.

14.  Mr Sherry, after critically analysing the evidence of PW5, contends that PW5 did not go as far as to say that “it does not necessarily mean that the defendant had not come into contact with anything inside the hut”, as directed by the judge.

15.  In his critical appraisal of PW5’s evidence, Mr Sherry questions PW5’s expertise in the field of fingerprint examination.  He points out that no evidence was given by PW5 as to his relevant qualifications as an expert in gathering fingerprints or his competency in giving an opinion as an expert in the field of fingerprint examination.  It seems that no issue was taken by defence counsel because his evidence was that he found a fingerprint on a mirror but nothing else of significance.[4]  On the position taken by defence counsel at trial, the directions issued by the Court of Appeal in HKSAR v Apellete Kokou Afla (unreported, CACC 176/2017, 23 October 2019) are apposite.

16.  In an overview of PW5’s evidence, Mr Sherry notes that when PW5 attended the hut, he examined the door, a metal can, a beer can, a plastic box or bin, a cabinet, a cigarette box and some plastic bottles and a clock to see if there were any fingerprints that could be lifted from these items.  He further notes that in cross-examination, PW5 was questioned why he did not examine other items or parts of the hut for fingerprints. PW5 explained that he did not examine other items because, from his experience in dusting fingerprints, they were not suitable for examination.  He did not examine the door because it was a very coarse wooden door and according to his past experience, fingerprints would not be found on such a surface.  He confirmed that he decided what items should or should not be examined for fingerprints. 

17.  Mr Sherry argues that it is significant that in the course of PW5’s evidence he did not say that the absence of the applicant’s fingerprints in the hut or on the exhibits found at the scene did not necessarily mean that the applicant had not come into contact with anything inside the hut.  He contends that PW5 did not explain why some of the items found at the scene did not require examination or may not have been suitable for examination, and the absence of fingerprints on some of the items did not mean that the applicant did not have contact with them.

The applicant’s evidence

18.  To put the argument under this ground of appeal in context, it is appropriate to briefly refer to the applicant’s case and his evidence.  His case was that he was present in the hut when a team of police officers arrived there in the evening of 7 December 2016 but the drugs were found in an adjacent room of the hut and not on the table. 

19.  The applicant testified that he had been going to the hut to buy Ice for smoking for about 3 months.  He said that he was there on an average of 5 to 6 times a month.  On 7 December 2016, he went to the hut as before to buy Ice for smoking and arrived there at about 19:00 to 19:15 hours.  He said he was let in by a Vietnamese called “Ah Fat”.  He said there were already 7 to 8 people inside.  He said he paid “Ah Fat” $100 who in turn gave him a small packet of Ice.  He then sat on the sofa and emptied the pack of the Ice into an Ice bottle and smoked some of it.  He said that there were other people in the hut taking other drugs by using tinfoil.[5]  However, the evidence of the police officers was that no bottles for smoking Ice or tinfoil were found in the hut.[6]  He said that the doors of two rooms inside the hut were closed and he could see that one of the rooms was locked with a padlock on the outside.[7]  He said the drugs were found in the locked room by one of the police officers after he kicked the door open.[8]  He said he dozed off after smoking some Ice and he woke up because he heard a loud noise.  He claimed that he had been left alone in the hut and he heard someone shouting “police, opened the door”, and he opened the door for the police. 

20.  Whilst this is not a complete summary of the applicant’s evidence, it seems that no issue was taken that the applicant was present in the hut and had been there for some time.  The applicant also confirmed in his evidence that he came into contact with certain items in the hut. 

The relevant authorities

21.  Mr Sherry prays in aid the decision of HKSAR v Silva Barba Alexander Alberto [2017] 1 HKLRD 29 (Silva) in support of this ground of appeal.  In that case, it was an admitted fact that no fingerprint or DNA evidence of the applicant was found or lifted from any of the prosecution exhibits.  The trial judge mentioned this to the jury and told them that they should consider how significant the lack of such evidence was in reaching a verdict.  He then said:

“However, I should say there are many reasons why contact may not result in traces of DNA and/or fingerprints.”

22.  The Court of Appeal in Silva found that there was no evidential basis for the judge’s direction to the jury and that such evidence was limited entirely to the admitted facts.  The Court held that in the absence of evidence as to why contact might not result in traces of DNA and/or fingerprints, it was impermissible for a judge to direct the jury as he did, for to do so, was, in effect, to endorse speculation as to what evidence there might have been.  The Court also noted the case was different from HKSAR v Law Wing Hong (unreported, CACC 169/1998, 11 November 1998), in which it was said that “where there is no fingerprint evidence at all that proves nothing either way”; and HKSAR v Oswaldo (unreported, CACC 428/2012, [2013] HKEC 975), which concerned fingerprints and where there was evidence as to why contact might not result in fingerprints.

23.  It should be noted that a similar ground was recently advanced in HKSAR v Manan Abdul, (unreported, CACC 64/2019, 13 November 2019), where McWalters JA granted the applicant leave to appeal to argue that there was a misdirection in respect of the fingerprint evidence.

Conclusion

24.  It seems to me there is an issue as to whether the judge’s remarks to the jury that the lack of fingerprint or DNA evidence in the hut or on the exhibits “does not necessarily mean that the defendant had not come into contact with anything inside the hut” had a sufficient evidential basis, and whether in the context of the summing-up and the evidence these remarks amounted to a material misdirection.  It essentially raises the question whether or not the jury by these remarks were prevented from considering the evidence of the admitted fact together with all the other evidence presented at trial.

25.  It follows from what I have said that leave is granted to the applicant to appeal against his conviction on this ground.