R. v. CHONG CHAK ON

IN THE COURT OF APPEAL

1994 No.633
(criminal)

HEADNOTE

Lies - the application of the four requirements set out by Lord Lane in r. v. Lucas - The effect of the ruling in Gary Michael Goodway - the matters that must be canvassed when directing a jury.

The proper sentence for trafficking in a very large amount of herbal cannabis.

IN THE COURT OF APPEAL

1994 No.633
(criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant pleaded not guilty to one count of trafficking in a dangerous drug. He was tried before Deputy Judge Pang and a jury, found guilty and sentenced to imprisonment for 20 years.

2. The particulars of the offence alleged that he, on 7th July 1993 inside No.11, Ground Floor, Tai Wai Village, Yuen Long, New Territories, unlawfully trafficked in a dangerous drug, namely 388.674 kilogrammes of herbal cannabis.

3. It was the Crown case that in May 1993 the applicant went to a property agency requesting that it find him a cheap flat in the New Territories. This was on 22nd May 1993. The applicant, using the name Cheng Ko-man, produced to the property agent an identity card bearing that name. The real owner of the card had reported its loss in 1990. On 18th June 1993 the applicant went back to the agency and told the property agent that he was interested in renting one of the premises which he had been shown on his earlier visit. Those premises were not available but, on 19th June, the applicant was shown other premises situated in Tai Wai village. He agreed to rent those premises, duly signed the tenancy agreement and was given a set of keys, a copy of the agreement and a rental receipt. The applicant used the name Cheng Ko-man throughout this transaction.

4. On 7th July 1993 the police raided the premises in Tai Wai village and seized 26 cartons of cannabis which are the subject of the count.

5. Copies of the tenancy agreement and the rental receipt were handed to the police on 19th July 1993 and left and right thumb prints of the applicant were found on the tenancy agreement.

6. The applicant was arrested on 27th October 1993 and on 2nd November the left palm print of the applicant was found to be identical to one lifted from one of the cardboard cartons which contained the drugs.

7. The applicant gave evidence at trial saying that he had been asked to rent the premises by a person he knew as Ah Lam who had given him Mr. Cheng's identity card; that he thought the card belonged to Ah Lam; that he signed the agreement in the name Cheng because he thought it appropriate to do so as he was renting the place for Ah Lam; that he gave his copy of the tenancy agreement and the keys to the premises to Ah Lam. As to his palm print on the cardboard cartons he said that he had visited Ah Lam on one occasion at his flat in Ngautaukok and that it could be that he had, on that occasion, accidentally touched one of a number of cardboard cartons which he saw on those premises.

8. The jury clearly rejected the exculpatory evidence of the applicant and were prepared to infer guilt of the offence charged.

9. Mr. Cheng Huan, Q.C., with him Mr. Joseph Tse, appears before us for the applicant. The first, and indeed the only ground of any real weight, is as follows:

"1. The learned trial judge erred in his directions to the jury on the question of lies inasmuch as he failed to give a 'Lucas' direction as required in law:

(a) the learned judge's directions clearly suggest that lies could be used as evidence to prove the applicant's guilt;

(b) in these circumstances it was incumbent on the learned judge to give full 'Lucas' directions."

The direction to which exception is taken is as follows:

"It is also the Crown's case that the defendant had lied when he gave evidence and had invented the person whom he referred to as Ah Lam. The Crown says the explanation which the accused had given about how his palm print had got onto the paper cartons were untrue.

After considering all the evidence, you may come to the conclusion that the defendant might have lied or he did lie to you when he gave evidence. The mere fact that a defendant tells a lie is not in itself evidence of guilt.

A defendant may lie for many reasons. For example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his short of the commission of the offence, or out of panic or confussion.

If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them. But if you are sure that he did not lie for some such or other innocent reason, then his lie can be evidence going to prove guilt."

10. It is Mr. Cheng Huan's submission that it was incumbent upon the judge "to give full 'Lucas directions'". He placed particular reliance when making this submission upon the unreported judgment of Nazareth J.A., as he then was, in The Queen v. Ho Chi-chung (Crim.App. No.142 of 1993). In that matter Crown Counsel had, in the course of his address to the jury, appeared to be relying upon lies to prove guilt. Nazareth J.A. delivering the judgment of the court said:

"Turning then to the circumstances before us, plainly in the passages we have cited, prosecuting counsel was asking the jury to rely upon the lies told by the applicant for the purpose of inferring guilt. In the absence of any direction on the point, it was left open to the jury to take lies into account in inferring guilt. It follows that a Lucas direction should have been given and that failure to do so was a misdirection."

He went on to say:

"A Lucas direction would, it has to be noted, have required the lies to meet the following criteria:

1) they must be shown to have been deliberate;

2) they must relate to a material issue;

3) the motive for the lies must be a realisation of guilt and a fear of the truth; and

4) they must be shown to be lies by either an admission by the defendant or by the evidence of an independent witness."

Mr. Cheng Huan submitted that "the full Lucas direction" called for in the present case required that the jury be instructed in those terms. He referred, as had Nazareth J.A., to the judgment from Mortimer J.A. in The Queen v. Li Wai-keung (unreported)(Crim App. No.361 of 1991), which he submitted had unequivocally held that the requirement to give a Lucas direction where lies were relied upon in support of the prosecution evidence was part of the law of Hong Kong.

11. It is necessary when evaluating Mr. Cheng Huan's submission to go back to the landmark case of Broadhurst v. The Queen (1964) A.C. 441 in which the definitive statement as to the use to which lies can be put was made by Lord Devlin when he said, at p.457:

"It is very important that the jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

This makes it clear that a jury must be told that lies do not prove guilt, but that, depending upon the circumstances and, especially, upon whether there were reasons other than guilt which might account for them, lies could be taken into account as strengthening the inference of guilt. The jury must, of course, be directed in the light of the facts of the instant case and the directions are best couched in common sense terms which they can readily understand. We repeat what was said by Penlington J.A. in R. v. Wong Kim-wah (1974) H.K.L.R. 185 at p.190:

"Unnecessary directions on lies serve only to confuse a jury. A jury must be treated as having the common sense of ordinary men and women. Further we conceive it to be the duty of the court to avoid, if at all possible, adding to the battery of required directions already asked of a judge - directing either himself or a jury. (cf. Archbold News: Issue 9; 29th October 1993 p.5)."

12. The approach to the use of lies was elaborated upon by Lord Lane in R. v. Lucas (1981) Q.B. 720. The appellant in that matter had been tried for an offence in respect of which evidence implicating her was given by an accomplice. It was the Crown case that the appellant had lied in part of her evidence. The jury were warned of the danger of convicting on the uncorroborated evidence of the accomplice and were told that the lies by the appellant in her evidence could be considered as corroborative of the accomplice's evidence. We note, in passing, that, by reason of the enactment of s.60 of the Criminal Procedure Ordinance which abolishes the need for corroboration in respect of the evidence of alleged accomplices, the decision in Lucas is now much more limited in its application. However, at the time when Lucas was decided, it was necessary to warn the jury as to the danger of convicting on the uncorroborated evidence of an accomplice and to direct them as to what constituted corroboration. Halsbury (Vol.11(2)), para.1141) makes it clear that corroboration is evidence:

"Corroboration of a witness's testimony must be afforded by means of independent evidence which implicates the accused by connecting or tending to connect him in a material respect with the offence charged. It is not enough that the evidence confirms in some material particular that the offence was committed, if it does not also point to the accused as the person who committed it. The content of corroborative evidence will necessarily vary according to the particular circumstances of the offence alleged, but corroboration bears the same general meaning whether required by the common law or by statute." (Emphasis supplied)

Corroboration is, then, provided by "independent evidence" and the court in Lucas was concerned with the circumstances in which lies could provide "corroborative evidence". Lord Lane held at 724:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.

As a matter of good sense it is difficult to see why, subject to the same safeguards, lies proved to have been told in court by a defendant should not equally be capable of providing corroboration."

Four requirements are there set out. The fourth requirement, proof by admission or by independent evidence, was necessary as the court was dealing with lies as corroboration and corroboration consists of facts established by evidence. We are satisfied that Lord Lane was not, when he postulated the four requirements, formulating a mantra to be chanted to a jury each time it is suggested that the lies told by a defendant might be used to support other evidence of guilt.

13. It is true that appellate courts have frequently used the expression "a Lucas direction" but we are satisfied that this term, properly understood, refers not to a set formula reciting the words used by Lord Lane in Lucas but to a direction given in accordance with the facts of the particular case adopting such requirements in Lucas as are applicable thereto.

14. Mr. Cheng Huan argues to the contrary submitting that Gary Michael Goodway (1994) 98 Crim.App.R. 11 has extended the requirement to give "a full Lucas direction" to all cases where lies are relied upon to support evidence of guilt. He refers to the words of the Lord Taylor C.J. at p.17 where he said:

"In our view, there is no reason in principle or logic for drawing a distinction between corroboration and identification cases and any other cases in which lies may be relied upon in support of prosecution evidence."

15. Goodway must be looked at in the light of its own facts. The prosecution there was, in support of its identification evidence, relying upon lies which had been told by the appellant during police interviews.

16. Lord Taylor C.J. said, at p.15:

"Accordingly, the learned judge gave a Turnbull (1977) Q.B. 224 direction to the jury in impeccable terms. Towards the end of it he said:

'Finally, is there other evidence to support the witnesses' identification ?'

After making clear that the failure of the appellant to testify could not be regarded as supporting evidence, the learned judge went on, at p.20 of the transcript, to say:

'What you have are the answers that he gave to the police in those very long and, dare I say it, sometimes rather dreary interviews ..... . You consider his answers that he gave and I will remind you of them, (not every one of them but the substance of that) and you give them the weight you may think they deserve.'

In three subsequent passages, the learned judge referred to those assertions in the interviews which the prosecution relied on as lies. Nowhere, however, did he give any direction as to how the jury should approach lies told by an accused."

He went on later to say:

"In the present case, the appellant's lies were relied upon by the Crown as support of the identification evidence and the summing-up in the passages quoted encourages the jury so to regard them."

17. To understand the meaning of the word "support" we must turn to the judgment of Lord Widgery C.J. in R. v. Turnbull at p.229 :

"When in the judgment of the trial judge the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification." (Emphasis supplied.)

These passages make it plain that less than satisfactory evidence of identification should not be acted upon unless the jury is satisfied that it is supported by "other evidence". It seems to us clearly right that lies should not be relied upon as "other evidence" unless they are established to be lies by evidence i.e. by admissions or by the evidence of another witness. When such use is, therefore, sought to be made of lies they, sensibly, must, just as when it is sought to use them as corroboration, satisfy the fourth requirement in Lucas. Mr. Cheng Huan, however, argues that Lord Taylor went on to extend the need for a "full Lucas direction" to all cases where lies are relied upon in support of other evidence of guilt when he said (at p.17):

"In our view, there is no reason in principle or logic for drawing a distinction between corroboration and identification cases and any other cases in which lies may be relied upon in support of prosecution evidence. Accordingly, we consider Mr. Marshall-Andrews' broader proposition is sound and that a Lucas direction should be given, save where it is otiose as indicated in Dehar, whenever lies are, or may be, relied upon as supporting evidence of the defendant's guilt."

18. The meaning of that statement is, however, properly understood only by turning back to the words of Lord Taylor, at p.15, when he set out the Lucas requirements as follows:

"It is well established that where lies told by the defendant are relied on by the Crown, or may be relied upon by the jury as corroboration, where that is required, or as support for identification evidence, the judge should give a direction along the lines indicated in Lucas. That is to the effect that the lie must be deliberate and must relate to a material issue. The jury must be satisfied that there is no innocent motive for the lie and should be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame, or out of a wish to conceal disgraceful behaviour. In regard to corroboration, the lie must be established by evidence other than that of the witness who is to be corroborated." (Emphasis supplied.)

19. Here he acknowledges that the final Lucas consideration has application only where the lie is being used as corroboration i.e. as evidence. We are satisfied that the court in Goodway was holding no more than that the fourth requirement also had application where it was sought to use the lie as evidence to support less than satisfactory evidence of identification. Goodway is not authority for the proposition that where a court is dealing with a lie which it is suggested supports evidence of guilt, i.e. a Broadhurst lie simpliciter, all four Lucas requirements have application. In such a case the court need consider only the first three requirements. What has to be said to the jury about them will depend upon the circumstances of each case. The choice of words is the responsibility of the trial judge.

20. Even if no reference to the fourth requirement was necessary in the present case Mr. Cheng Huan argues that the judge did not deal with the first three requirements, i.e. that the lies must be deliberate, that they must relate to a material issue, and that the motive for the lies must be a realization of guilt and a fear of the truth.

21. It is true that the judge did not tell the jury that the lies must be deliberate. Juries, we have no doubt, without any specific direction, treat a statement as a lie only if they are satisfied that it was a deliberate untruth. We are satisfied that it is enough, in the normal case, for the judge to tell the jury that they must be satisfied that what was said was "a lie". There may be rare cases where it would be necessary for the judge to assist the jury by canvassing whether the untruth was a deliberate one but this was not one of them.

22. It is true also that the judge did not instruct the jury that they must be satisfied that the lies were as to material issues. We are satisfied that no such direction is necessary where the lies were clearly as to material issues. Such a direction would be necessary if for instance a defendant told a gratuitous lie as to his age or his address which had nothing to do with the subject matter of the prosecution. However, where, as in the present case, the lies, if the juries were satisfied they were lies, were all told by the defendant in an attempt to establish that his involvement was innocent then they were clearly lies as to a material issue and it was not necessary for the judge to give a specific direction to the jury in that regard.

23. It is true also that the judge did not use the words of Lord Lane when dealing with the third requirement by telling the jury that "the motive for the lie must be a realization of guilt and a fear of the truth". The use of that phrase, in terms, is, we are satisfied, as likely to confuse a jury as to assist it. In the present case the judge did, however, follow the course suggested by Lord Lane in Lucas when he illustrated what he meant by that phrase. The judge said:

"A defendant may lie for many reasons. For example, to bolster a true defence, to protect someone else, to conceal disgraceful conduct of his short of the commission of the offence, or out of panic or confussion."

This was a sufficient direction to the jury that they must consider possible innocent motives for the lie. Indeed at the end of the day Mr. Cheng Huan did not press his contention that the judge had failed to satisfy the third Lucas requirement. In our view, on the facts of the present case, those requirements of Lucas which were applicable were satisfied and the directions of the judge were sufficient.

24. In many cases where the Crown seeks to use lies to support evidence of guilt it may well not be necessary for a judge to tell the jury that the lies must be deliberate and material but he should tell the jury that, if they are satisfied that the accused lied, they should, when considering the use which they will make of the lies, remember that people sometimes lie for reasons unconnected with guilt, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour and that the lie cannot be used by itself to prove guilt but can be used only to strengthen other evidence going to guilt.

25. Even this latter direction may not always be appropriate as was pointed out in Dehar (1969) N.Z.L.R. 763 at 765B:

"How far a direction is necessary will depend upon circumstances. There may be cases, as for instance, R. v. Dunster, an appeal (unreported) that came before this court in April 1967, where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic."

26. As Silke, V.-P. said in The Queen v. Man Bing Chou (Unreported Cr. App. No. 383 of 1990) referring to lies of this kind:

"The judge directed the jury that the statement in which the applicant admitted starting the fire was an important part of the Crown case. If they rejected the innocent explanation - accident - then they were left with an admission that he had started the fire which without else was an admission of guilt. The lies, if established, removed the innocent explanation. They were not lies peripheral to the central issue. Lies in such circumstances do not prove guilt but, once the jury is satisfied that they are lies thereby removing an innocent explanation of the act which constituted the offence, a finding of guilt will almost certainly follow.

These were, as we have said, not lies as to peripheral matters, as were the lies in Tam Chung Shing. While it was wrong to say that they were evidence going to proof of guilt it would not have been wrong to have told the jury that if they were sure that the applicant had lied when giving the innocent explanation that he had accidentally started the fire then they were entitled, if they accepted his admission that he did start it, to be satisfied as to guilt."

We cannot help but remark that the present case came very close to being one where the rejection of the explanation would necessarily have left the jury with no choice but to convict. The applicant did, however, have the benefit of a direction that a lie is in itself not evidence of guilt.

27. In his second ground Mr. Cheng Huan argued that the cross-examination of the applicant was conducted in such a manner as to render the trial unfair. It is suggested that the cross-examination was, at times, improper and was, at times, meaningless and confusing. We have examined with care all of the instances upon which reliance is placed when arguing this ground. We are satisfied that nowhere did counsel ask any improper questions and that there was no confusion on her part which caused any unfairness.

28. In the third ground it is argued that the judge

"descended into the arena and assumed the role of the advocate. He cross-examined the applicant at length to discredit his evidence that he had been given possession of an ID card belonging to Ah Lam. His intervention was such as to give the appearance of a likelihood of bias."

We have examined the passage of which complaint is made and consider that we need say no more than that it falls very far short of establishing any impropriety on the part of the judge and does not give rise to any appearance of bias on his part.

29. It is not necessary for us to canvass Ground 4 as, given the view we take of Grounds 2 and 3 upon which it rests, it has no merit.

30. We are satisfied that the conviction was neither unsafe nor unsatisfactory and the application for leave to appeal against it is refused.

31. The applicant also seeks leave to appeal against his sentence of 20 years. When sentencing the trial judge said:

"According to the August 1993 issue of the Narcotics Bureau Bulletin, the wholesale value of herbal cannabis was HK$13,000 per kilogram in July 1993. The value of the cannabis seized would therefore have a wholesale value of HK$5,052,762.00. The mean street value at the same period was HK$45.00 per gram and this would yield a figure of HK$17,490,000.00. This is a huge quantity of herbal cannabis and I have no doubt that there is a large scale criminal operation behind it.

In the statement of Mr. Chan Man-fai, the Senior Government Chemist, the main psychoactive Constituent of Cannabis is the substance called tetrahydrocannabinol, which is abbreviated as THC, and the typical concentration of THC in herbal cannabis ranges from 0.8% to 2.5% by weight. The range is, however, between 0.25% to 8% , according to Senior Inspector Brown.

By analogy with R. v. Lau Tak-ming where the Court of Appeal correlated the narcotics contents with the various forms of heroin, the THC content of the present seizure would be 1.5% x 388.674 kilograms, yielding a figure of 5,830.11 grams. The 1.5% used in my calculation is the mean value of 0.8% and 2.5% referred to in Mr. Chan's statement. I decide not to adopt the percentages suggested by Senior Inspector Brown as it would yield a much higher mean value.

The current sentence guideline in Chan Chi-man is based on the weight of cannabis resin. By using a conversion factor of 6% THC content for cannabis resin, 9,000 grams of resin would equal to 540 grams of THC, and this is the category which will attract a prison term upwards of 4 years.

The THC content in the present case as seen in my conversion above is therefore more than 10 times the upper limit of the 540 grams in Chan's case. As I had indicated earlier, the sheer bulk of the herbal cannabis seized is indicative of the scale of the criminal activity involved."

The judge then, having referred to the statistics which indicated that abuse of cannabis was becoming more widespread, said that he accepted that the applicant was not the mastermind and was dealing with him upon the basis that he was the person who had arranged to store the drugs and who had played an integral part in the unlawful scheme. He then sentenced him to imprisonment for 20 years.

32. Mr. Joseph Tse, who made the submissions relating to the application for leave to appeal against sentence, submits that the judge was wrong to make an assessment of the THC content and then to apply the approach adopted in The Queen v. Lau Tak-ming (1990) H.K.L.R. 370 which deals with heroin. He submits further that his acceptance of 1.5% as the THC concentration factor was wrong as there was no evidence as to the actual concentration factor of the cannabis which was the subject of the charge.

33. We are satisfied as to the merit of these submissions. Having made them Mr. Tse went on, however, to suggest a similar, and, it seems to us, equally erroneous approach. He contended that the lowest level of THC concentration, namely 0.25% referred to by Senior Inspector Brown should be adopted. By using this as a factor he was able to demonstrate that the appropriate sentence would be one of four years. When so doing he referred to The Queen v. Tuen Shui-ming, Application for Review No.12 of 1994, in which the current tariff for possession of cannabis resin is set out. This case, however, has no more application to the present offence than does R. v. Lau Tak-ming. The latter deals with heroin, a very different kind of dangerous drug to which different sentencing considerations apply, and the former has no application as it was decided after the commission of the present offence. The applicable sentencing guidelines are set out in The Attorney General v. Chan Chi-man (1987) HKLR 221. This states that where a defendant is found in possession of over 9,000 grams and the sentence will be four years upwards. It indicates that the court may take into account in the case of herbal cannabis the less damaging effect it has than that of cannabis resin and cannabis oil. The guidelines make it clear that sentence is governed by the weight of the herbal cannabis. The THC content is relevant only insofar as it allows the court to take a more lenient view of herbal cannabis than it would of an equivalent amount of cannabis resin. The applicant had in his possession over 40 times the amount of cannabis that would have called for a 4 year sentence. No issue was taken with the statement by the judge that it had a wholesale value of more than $5m and a street value of more than $17m. He was, we are satisfied, quite right to state that he had "no doubt that there is a large scale criminal operation behind it". In A.G. v. So Chin-chiu Application for Review No.10 of 1993, the respondent who had just over 93 kilograms of herbals cannabis was originally sentenced to three years' imprisonment. On review the sentence was increased to one of six years. The applicant had possession of more than four times that amount. In So Chin-chiu's case the respondent had pleaded guilty and Macdougall J.A. stated that the starting point after trial would have been imprisonment for eight years.

34. In the present case the judge was faced with a difficult task when assessing sentence. The quantity was larger than any previously dealt with by a court in Hong Kong and the guidelines were of limited assistance. While we are satisfied that he adopted an incorrect approach, we are not persuaded, in the outcome, that the sentence of 20 years was in any way wrong. Given the amount involved and its value we are satisfied that it was a proper sentence and the application for leave to appeal against sentence must also, therefore, be refused.