HKSAR v. KO CHEUK FAN

[English Translation – 英譯本]

CACC 19/2021

[2022] HKCA 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 19 OF 2021

(ON APPEAL FROM HCCC NO. 259 OF 2019)

________________________

________________________

_________________

J U D G M E N T

_________________

Hon Derek Pang JA (giving the judgment of the Court):

1.  The appellant pleaded not guilty and was tried in the Court of First Instance of the High Court. He was subsequently found guilty of both Charge 1 (trafficking in 275 grammes of cocaine) and Charge 2 (trafficking in 21.10 grammes of ketamine and 6.55 grammes of cocaine). The trial judge, Deputy High Court Judge Douglas Yau, sentenced him to a total of 13 years and 3 months’ imprisonment. Having obtained the leave to appeal from a single judge, the appellant formally lodged the appeal against his conviction.

Basic Facts

2.  On 20 December 2018, customs officers intercepted a parcel sent from Brazil and found that it contained the dangerous drugs in Charge 1. A customs officer thus posed as a postman, delivered the parcel to the appellant’s address (“the unit in question”) and arrested the appellant after he had signed to acknowledge the receipt of it. During the search of the unit in question, the customs officers also found the dangerous drugs in Charge 2 and the drug packaging and smoking paraphernalia in two different locations in the living room.

The Relevant Evidence

(Prosecution)

3.  According to the prosecution witness(es), the customs officer delivered the parcel according to the name and address on the parcel and the air waybill. Outside the unit in question, the customs officer checked the identity card of the appellant, who then signed the air waybill to acknowledge the receipt of it. The customs officer immediately arrested the appellant and opened the parcel in front of him. After entering the flat, the customs officers seized a plastic bag of ketamine in a computer bag next to the computer table in the living room; and in a drawer in the floor cabinet in the living room, they also found two plastic bags containing a total of 60 small packets of cocaine, four electronic scales, a batch of small plastic bags, a glass bottle with two plastic tubes, a plastic bag of plastic tubes, and four mobile phones.

4.  It is not disputed that, at the time when the officers were outside the unit in question, and also after they had found the two batches of dangerous drugs and the paraphernalia inside the flat, they cautioned and made enquiries with the appellant. The three paragraphs of the enquiries[1], excluding the caution, are quoted below. The first one took place after the parcel was opened outside the door:

“Q: What is this?

A: Don’t know.

Q: To whom does the parcel belong?

A: Don’t know.

Q: What is inside?

A: Don’t know.

Q: Having received the goods, to where will (you) take (it)?

A:   Don’t know.”

5.  The next one took place after the dangerous drugs were found in the computer bag:

“Q: What is this?

A: Don’t know, not mine.

Q: Apart from you, who else lives in the flat?

A:   I, my wife and son, but they rarely come back to sleep here.”

6.  The last paragraph is about the discovery in the drawer of the floor cabinet:

“Q: What is this inside the cabinet?

A: Don’t know.

Q: What are the re-sealable bags and the glass bottle with plastic tubes which are suspected to be smoking apparatus used for?

A: Not mine. I don’t know.

Q: Who uses the cabinet the most?

A: The cabinet is used by me.

Q: To whom do the dangerous drugs found inside your flat belong?

A:   Don’t know. But it does not belong to my wife. She doesn’t know anything.”

(Defence)

7.  The appellant elected to give evidence, his version of events could be summarised as below: Two weeks before the incident, the appellant took an overseas trip. During that time, his wife temporarily moved back to her parents’ home because she was pregnant. The vacant flat was then lent to a friend, “Ah Chung”, for him to stay there temporarily as he was involved in a family dispute. Ah Chung did not know the exact date on which the appellant would come home. At the material time, the appellant and his wife had only returned home for one day, and the appellant’s wife just happened to have gone out when the customs officers came up. It was out of a natural reaction for the appellant to sign to acknowledge the receipt of the parcel. He thought that it was the baby products which he had bought by mail order earlier. The appellant had never seen the computer bag next to the computer desk. He did not often use the drawer of the floor cabinet, so he did not know what was in it. In retrospect, at the material time, only four persons, including the appellant, the appellant’s wife, the appellant’s mother and Ah Chung, possessed the key(s) to the unit in question. However, it is impossible for the first two persons to own the dangerous drugs and the paraphernalia, thus the appellant suspected that they belonged to Ah Chung. During the appellant’s detention, his friend “Leung Chung Man (transliteration)” visited him and told him that he could not find Ah Chung. The appellant also asked his wife to contact Ah Chung on Facebook, but he did not know if she did or not. The appellant had Ah Chung’s phone number but he did not tell the customs about his suspicion about Ah Chung.

8.  The second defence witness was Leung Chung Man. He said that he knew Ah Chung. He had personally witnessed that the appellant gave Ah Chung the key(s) to his flat for Ah Chung to stay there temporarily. He did call Ah Chung after the incident but found that his phone number was not in use. He then reached Ah Chung via WhatsApp and was informed that Ah Chung had gone to Australia.  However, as soon as he mentioned the arrest of the appellant, Ah Chung did not respond any further. As he had just changed to a new mobile phone, he was unable to provide the above communication record on WhatsApp.

9.  The appellant’s wife also testified, as summarised below: Ah Chung had come to their home several times, but she had never talked to him. The appellant told her the day before he left that Ah Chung would come to stay temporarily. He did not say up to what time Ah Chung would stay, but she did not object. While the appellant was away on a trip, she went home once to get her clothes and she saw Ah Chung at that time. The day after the incident, she tried to call Ah Chung, but no one answered. It just kept ringing for a long time. She would do online shopping from time to time, but she had nothing to do with the dangerous drugs in the case. She had never seen the computer bag in question, nor had she ever put anything into the drawer of the floor cabinet.

(Admitted Facts)

10.  After all the witnesses had given evidence and before the closing submissions started, the prosecution and defence submitted the second “Admitted Facts” to the Court. It is stated that on 22 December 2018, that is two days after the incident, when the appellant was making his bail application in the magistrates’ court, his lawyer submitted in court that “no one was at home during the period from the 6^th to the 19^th; (the flat) was lent to a friend”.

Grounds of Appeal

(Issues Arising)

11.  The issues in this appeal are very narrow. They involve a part of the prosecution’s cross-examination and a part of its closing submissions. All the issues were about Ah Chung.

12.  The appellant was the one being cross-examined, and the content was as follows[2]:

“Q: All right, there is one (thing), that is, actually, you had the contact phone number of Ah Chung at that time?

A: Yes.

Judge: Did (you) have (it) or not?

Ms Lee: (He) had Ah Chung’s contact phone (number).

Judge: (You) had (it), yes, yes.

Q: And also, you could contact the customs officers if you needed to, is that right?

A: Yes.

Q: Have (you) ever thought of contacting the customs officers, telling them what your suspicions were, soas to let them investigate, to see if they could locate Ah Chung?

A: Because afterwards, that is, as far as I know, the situation was perhaps I was already being remanded in custody at the time, and I didn’t think about that in particular, because I was still thinking about which legal team I should retain to represent me.

Q: So you didn’t do anything else?

A: Right, because I mainly used the time to think, that is, looking for who should be the legal representatives to represent me.

Q:     All right, I don’t need to know the communications between you and your legal representatives. Okay, Mr Ko, I now put the prosecution case to you ...”

13.  On the same point, the prosecution made further submissions in its closing, referring to the Admitted Facts being the content of paragraph 10 above[3]:

“ All right, and just now, our second Admitted Facts were mentioned, and when Mr Ko was applying for bail in court, he did mention that his flat had been lent to somebody and he was not in Hong Kong for a period of time. Yesterday, we also—we did ask Mr Ko before, that is, (since) he had his suspicions about Ah Chung, did he mention that to the customs officers? At that time, he explained that, because he wanted to focus his attention on his legal team—the legal team representing him, which we all understand of course, but I also have to ask you to consider, at that time—Mr Ko had already been charged, and did not have bail. Since he had suspicions about Ah Chung, and that’s why it’s very simple, he could have contacted the customs and told them, ‘I have suspicions about Ah Chung. This is his telephone information. You guys go make enquiries’, to clear his name or try if he could assist the customs, and to help himself, but this was not done.

  Also, I do think, in fact, because Mr Ko, he himself knew that he did take part in (it), he knew that they were dangerous drugs, so he didn’t mention that to the customs, didn’t provide them with the information for them to make further investigations.”

(Response of the Defence)

14.  The defence did not re-examine the appellant, but did respond in the closing submissions as follows[4]:

“ Moreover, the prosecutor also said, ‘You know this Ah Chung, how come you didn’t tell the customs? Is that right? Let the customs make enquiries of him, is that right?’ Let’s look at the Admitted Facts, 59A, that is the one we gave you this morning. I am sorry, let’s find it first. This Admitted Facts, roughly says that, on the 22nd of February—22nd of December, I’m sorry. The Admitted Facts say that on 22nd December 2018, the Defendant, through his lawyer, and this lawyer is not us, (and) also on record, it’s not me. If I am wrong, the judge will correct me. We were not the legal team (at the time), that is, our—not us; through the lawyer, (he) applied for bail at the West Kowloon Magistrates’ Court, during which it was said, ‘Someone entered the flat between the 6th and the 19th. I lent (it) to a friend’. At that time, he was represented by a lawyer. When we read the contents, the lawyer said on behalf of him, that is, the lawyer would have known that a friend was—he had lent (his) flat to a friend; otherwise, he wouldn’t have said things like that, right?

  We don’t know how he communicated (and) interacted with the lawyers, or what advice the lawyers had given him. We don’t know what advice the lawyers had given him—whether he should tell the customs, or (he) should not (tell) the customs—we don’t know anything about that. However, members of the jury, there should not be any adverse speculation against the defendant because of that, because he was legally represented, (and) we don’t know what advice his lawyers had given him. But what we are sure of is that, two days later, two days after he was arrested, he had already told the court, ‘I had lent the flat to someone at the time’, right? It’s not the case that he only made it up when he was tried in the High Court,  right? There is no such thing. So this comment is not fair to the defendant unless we ask the lawyer to come (to court), but (regarding) the communications or interactions between the lawyer and the defendant, there is a clause, a clause of privilege; he doesn’t have to disclose it to anyone unless he waives this privilege.”

(The Trial Judge’s Approach)

15.  On this issue, the trial judge did not repeat the prosecution’s case in his Summing-up, but merely restated the defence (counsel Mr Ng’s) position[5]:

“ As to why the defendant did not tell the customs officers about Ah Chung, first of all, Mr Ng pointed out, look at the second Admitted Facts, on 22 December, two days after (the arrest), immediately, it was even in court, in a court venue, that (the defendant had) already told the court through his lawyer, saying—and I am using the exact wording—said that, during the period between the 6th and the 19th, no one was at home, (and) he had lent (his flat) to (his) friend, (and) this was on 22 December; the defendant had already promptly raised (the matter), that was two days after (his) arrest. In court, the defendant further gave you a detailed account of the course of the incident in the witness box. What Mr Ng said is that, as early as the 22nd day, (the defendant) had already mentioned that (his flat) had been lent to someone, and that reflects that the defendant did not make up the story only when he came to the witness box in court. And in fact, that is the truth. It is hoped that the court accepts what the defendant had said is true or may be true, and under such circumstances, you should find him not guilty on both charges. This is the summary of the defence submission.”

The Specific Complaints

16.  The appellant’s counsel was not the defence counsel at trial. The complaints lodged by the appellant can be summarised as follows: All of the statements made by the appellant at the time of the offence were in nature simple responses all denying guilt[6] and the appellant should be considered to be exercising his right of silence (Naylor[7], Cheung Oi Hin[8]); the appellant maintained his right of silence and that still applied during the bail proceedings two days after the case had taken place. The submissions of the defence counsel in the bail application, that is, the statement that the unit in question had been lent to someone, still remained a simple response of denying guilt. As there was no contradiction between the statements made in the bail application and in the trial proper respectively (by saying generally that (the unit in question) was lent to someone or by saying specifically that it was lent to Ah Chung), the court should have imposed restrictions on the relevant parts of the prosecution’s cross-examination and final submissions or given remedial directions, but had failed to do so. As a result, the appellant’s right of silence was undermined, causing procedural impropriety, and making the conviction unsafe (Lee Fuk Hing[9], Tam Chi Wai[10]).

The Argument of the Respondent

17.  The arguments of the respondent can be summarised as follows: The question of whether the right of silence has been infringed depends on whether the defendant had exercised the right of silence (Lam Sze Nga Josephine[11]); all the statements made by the appellant at the time of the offence were only simple responses of denial of guilt, and he should be regarded as having exercised his right of silence then. However, through his counsel in the bail proceedings, he in fact had disclosed his defence in this case and therefore he should be treated as having waived his right of silence from that moment on. In any event, the prosecution’s intention during cross-examination was to point out that the story of Ah Chung was not inherently possible because, if the story was true, the appellant would definitely have disclosed it to the customs for them to investigate—the cross-examination along this line did not constitute an infringement of the appellant’s right of silence (Chiao Li[12], Chau Yui Ming[13], Lee Chun-ho[14]); the relevant directions of the trial judge only concern the question of whether the story of Ah Chung was a recent fabrication, and that would not give rise to the improper association that silence means having a guilty conscience, or that the defence (he) put forward  afterwards was not credible. Hence, that was not a problem either.

Discussion and Analysis

18.  Lee Fuk Hing is an authority on the right of silence. In that case, the Court of Final Appeal points out that it is impermissible to infer guilt from the defendant’s silence or to use the defendant’s silence to attack the credibility of his defence at trial. The Court of Final Appeal even says that a judge should not point out to the jury that the defendant is only presenting his defence for the first time at the trial, even if he also points out at the same time that the defendant has the right not to give any explanation to the police. The law cannot on the one hand claim to give the defendant the right to silence, but on the other hand allow the jury to follow or potentially follow an improper line of inference; otherwise, the right of silence and the related caution would become an entrapment to the detriment of the defendant[15].

19.  The Court of Final Appeal clarified that the prosecution and the judge may cross-examine, draw inferences from, or even make negative comments about the defendant’s statement (whether before or after the caution by the police) relevant to the defence in court. The condition is that, there should be inconsistencies between such statement and the defendant’s defence in court, and that the cross-examination, inferences and negative comments concerned are not related to the defendant’s right of silence[16].

“57. We may add that, of course, if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

20.  In the case of Li Siu Hing[17], the court ruled that cross-examination was permissible because there was inconsistency between the two statements. The defendant in that case was found to be in possession of ‘ice’ and under caution, he had said, “Isn’t it Blue Tablet… you should investigate carefully” etc. (‘Blue Tablet’ means ‘Blue Elf’). However, at trial, he said that he thought the drugs involved had been obtained under medical prescription and that he was just delivering the medication to a friend. The judge of the Court of First Instance, when directing the jury, pointed out that the jury could not infer that the defendant was guilty simply because his statement of believing that there was a prescription was first mentioned at trial, but the jury could evaluate the reliability of the defendant’s version that he believed there was a prescription by looking into the defendant’s explanation of why he had not mentioned that there was such a misunderstanding earlier at the crime scene[18]. The Appeals Committee of the Court of Final Appeal did not make any criticism of the above direction. Instead, the Appeals Committee said that the case clearly fell within the exceptions mentioned in the Lee Fuk Hing case.

21.  With reference to the decision in the Li Siu Hing case, and applying the relevant legal principles to the present case, perhaps what the prosecution was entitled to cross-examine on was the statement the appellant had made under the second caution. That means under all the relevant circumstances at the material time, regarding the question of “who else was staying in the flat”, there was room to explore as to whether the appellant’s answer could be considered inconsistent with his defence at trial. As to what is the final answer, whether it constitutes inconsistency or not, that depends very much on the wording and direction of the prosecution’s cross-examination. If the overall cross-examination of the prosecution had not been controlled tightly enough, or if the prosecution had intentionally or unintentionally used the closing submissions to push the jury into drawing improper inferences, that would be a violation of the rules.

22.  However, the prosecution did not cross-examine the appellant on the relevant conversations. Instead, the prosecution focused on the submissions made by the defence counsel in the course of the bail application proceedings. The problem is that, unlike the statement made under caution, the task of the defence in a bail application is to state the reasons why the appellant should be granted bail in a simple way, and indeed its content is less likely to contradict the final version of the defence than the second statement made under caution (see paragraph 25 below).  It is therefore difficult for the respondent to downplay the issue by submitting that the cross-examination was designed to question the inherent probability of the statement, or asserting that it was not related to the appellant’s right of silence. On the latter point, the prosecution alleged at the end of its closing submission, excerpted in paragraph 13 above: that in fact the appellant did not seek assistance from the customs in respect of Ah Chung “because [the appellant] knew that he took part in it and knew that (they were) dangerous drugs, so he did not mention that to the customs”.

23.  This Court is of the view that the bail submission of the defence and the appellant’s defence at trial were consistent and that the appellant cannot be accused of being inconsistent on the basis that the former was not detailed enough (it only mentioned that the flat was lent to someone without saying to whom it was lent). A similar example can be seen in Cheung Oi Hin. Since the prosecution made the allegation in paragraph 13 above at the close of the case, apart from hoping to push the jury into the realm of improper inference, the Court cannot see what other effect the prosecution intended to achieve—and probably they had achieved their  goal—by conducting the relevant cross-examination. We make the above observation because the jury asked the following question (only the third paragraph is excerpted below) shortly after the jury retired. This question suggests that the jury was pondering what the implication of the failure to prove Ah Chung’s existence was and what conclusion they could draw from this gap[19].

“ ... Moreover, the defence has mentioned the existence of this person, Ah Chung, whose name and other information may not have been mentioned before the trial. So, for the burden of proof, does the prosecution or the defence have the burden of proving the existence or non-existence of this person based on the mobile phone number of Ah Chung or the mobile phone number of his sister’s fiancé, and other relevant information? If the law enforcement departments conduct their investigations and are able to prove the existence or non-existence of this person, is it necessary for the prosecution to inform the jurors?”

24.  Of course, even if the trial judge does not stop the prosecution’s cross-examination, the judge could still remedy the situation after the cross-examination had taken place, but unfortunately, neither he nor the parties realised what the problem really was. The trial judge simply included the second Admitted Facts into the evidence as agreed by the defence, which showed that he was thinking along the same line as what the defence had indicated in the closing submission, simplifying the attack of the prosecution to a general allegation of recent fabrication.  The trial judge gave the directions in paragraph 15 above. He did not deal with the relevant cross-examination conducted by the prosecution, nor did he in any part of the summing-up direct the jury that they should not cross the line set down by the right of silence. Even when the trial judge received the question from the jury, he only reiterated the directions as to who should bear the burden of proof and that they should not speculate and should only decide the case according to the available evidence[20]. This was useless in preventing the jury from drawing improper inferences.

25.  Finally, we have to turn to the waiver of the right of silence. The Court of Appeal did rule in Li Siu Hing[21] that a defendant should be deemed to have waived his right of silence as soon as he responds to a police officer’s inquiry, no matter whether under caution or not. This decision was based on the High Court of Australia case, Petty & Maiden[22]. The problem with that is the court is not a law enforcement agency, nor is it a person in authority mentioned in the case; therefore, the submission of the defence in legal proceedings has nothing to do with the exercise of the right of silence or not. This does not mean that the prosecution cannot conduct its cross-examination on the basis that there is inconsistency between the submission and the defendant’s defence in court: see, e.g., Nancy Kissel[23]. On the contrary, if the defence has never been disclosed in the pre-trial proceedings, the defendant is indeed protected by the right of silence, but the defence submissions in those proceedings cannot be considered a waiver of the right of silence.

26.  The two statements, that the flat was lent to someone and the one who borrowed the flat was Ah Chung, are consistent with each other. There was no reason whatsoever for the prosecution to argue that the inconsistency between the two statements could lead to an inference that the appellant was guilty. However, the trial judge did not intervene, so the jury was very likely to have been misled, causing the conviction to be unsafe and untenable.

The Ruling

27.  We allow the appellant’s appeal and both the conviction and sentence are quashed.

Retrial

28.  Before the conclusion of the hearing, the appellant indicated that he would not object to a retrial if the appeal is allowed. After reviewing all of the evidence in the case, we consider that it is in the public interest to have a retrial, and therefore accept the application of the respondent, and order that the case be remitted to the Court of First Instance for a retrial before a different judge and jury.