HKSAR v. CHIM CHOI LAN

CACC 425/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 425 OF 2012

(ON APPEAL FROM HCCC 204/2012)

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R E A S O N S   F O R   J U D G M E N T

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Hon Barnes J (giving the Reasons for Judgment of the Court):

1. On 10 October 2012, the applicant was convicted after a trial before Deputy High Court Judge A Wong (“the trial judge”) and a jury of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. She was sentenced to 7 years and 9 months imprisonment.

2. The applicant applied for leave to appeal against conviction. We dismissed the application on 27 August 2013.  We indicated we would provide our reasons later, which we now do.

The Indictment

3. The particulars of the offence were that the applicant on 23 December 2011, outside 4^th floor of 381 Castle Peak Road, Kowloon, unlawfully trafficked in dangerous drugs, namely 13.32 grammes of a crystalline solid containing 13.23 grammes of methamphetamine hydrochloride and 198 tablets and two tablet fragments containing 0.77 gramme of nimetazepam.

4. The trial judge summarized the prosecution case as follows:

“The allegation which the prosecution made against the [applicant] is a simple and straightforward one. They say that at about 1.20 pm on 23 December last year, the [applicant] and one other man and one other woman were going up the staircase of the building. The man was Hui Kin-wai – I will call him Mr Hui – the other woman was Ng Ching-ting – I will call her Madam Ng.

At the staircase between 3^rd and 4^th floor, a police officer revealed himself and demanded them to stop. The [applicant] threw away the jacket which was originally put on her left forearm. This jacket had been described in the trial also as a top and a windbreaker. For consistent purpose, I will call it a jacket. Then a police officer, PW1, picked up the jacket. Inside the pockets of this jacket, dangerous drugs which are the subject matter of the charge, were found. This is basically what the prosecution alleges against the [applicant].”

5. Evidence was led to show that when the applicant threw away the jacket, the police officer picked it up and asked her why she threw it away, whereupon the applicant did not answer.  The police then proceeded to search the jacket and found the dangerous drugs in question. Upon arrest and under caution, the applicant said that she knew nothing.

6. The applicant voluntarily took part in a video-recorded interview. Basically the applicant said repeatedly the jacket was not hers, she had not thrown it onto the ground.  She was accompanying Hui to return to Hui’s residence when she was stopped by the police.

7. It should be noted that there was no dispute that the police were acting on information and the “target” person was in fact Hui.  When the police searched Hui’s room (after finding the dangerous drugs in the jacket pockets), items which could be used to pack dangerous drugs, such as plastic re-sealable bags, spoons and a set of small scales were found. No dangerous drug was found inside the premises though.

Defence case

8. The defence case was one of total denial.  The applicant did not give evidence nor called any witnesses.  Her case was summed up by the trial judge as follows:

“…What she said during the investigation constitutes evidence that you must consider. The main line of what the [applicant] said is: the jacket was not hers; she had not thrown the jacket onto the ground; she knew nothing about the dangerous drugs found. She also gave an explanation of her presence at the scene on that day. Thus the defence case is one of denial. The [applicant] says she had nothing to do with the dangerous drugs in question; she did not traffic in those dangerous drugs.”

Grounds of appeal

9. Mr James McGowan, counsel for the applicant, advanced four grounds of appeal:

(1) the evidence of the police witnesses in the arresting party was such that no reasonable jury properly directed could have convicted on it;

(2) the selective prosecution of the applicant but not Hui in the circumstances was unfair and amounted to an abuse of process;

(3) the trial judge erred in directing the jury that, notwithstanding their expressed and repeated concern for their safety after a complaint by one of them that photographs were being taken at the trial court entrance, they should continue to deliberate on their verdict; and

(4) the conviction was unsafe and/or unsatisfactory.

10. In relation to Ground (1), Mr McGowan drew our attention to and highlighted the evidence of the three police officers (PW1, 3 and 4) who were present at the scene seeking to show that their evidence was so inconsistent as to create a “lurking doubt” warranting the interference on appeal to prevent a miscarriage of justice. 

11. The inconsistencies include how these various witnesses described the position of the applicant vis-à-vis Hui and the other woman (Madam Ng); whether the applicant was carrying a handbag at the time; and how the applicant threw the jacket down.  Further, questions were raised as to why the officers did not mention certain aspects of the case when they made their notebook record. One example was that a paper box with the description “Punto” in Chinese was, according to the police, used to contain the dangerous drugs. However neither PW1 nor PW3 made any mention of it in their respective notebook records. Another example was that PW3 did not mention the “throwing” of the jacket until he made his statement 5 days later.

12. Mr McGowan submitted that given the fundamental differences in the accounts given by the three police officers, there must be a real question whether the conviction was safe.  Merely holding the jacket was insufficient evidence to prove possession of the dangerous drugs on the part of the applicant.

13. As to Ground (2), Mr McGowan emphasised the fact that Hui was the “target” of the police operation and the police already had a warrant to search Hui’s home.  The applicant was returning to Hui’s flat with Hui, after they had been out somewhere together, when they were stopped at the staircase.  Inside Hui’s home, various items which could be used for packing dangerous drugs were found.  Though these items were in the possession of Hui (as he was the only one who had the keys to his home), evidence of their existence was led in the trial of the applicant.  Since Hui was not jointly charged with the applicant when the evidence pointed to Hui being the trafficker, not the applicant, Mr McGowan submitted such a course of action by the prosecution placed the applicant in peril, particularly when the prosecutor spoke of the applicant being in “joint possession” with Hui, and invited the jury to infer the applicant was the trafficker with reference to those items found inside Hui’s home.

14. In relation to Ground (3), Mr McGowan’s main contention was that the trial judge erred in directing the jury to continue deliberation when there was a real concern among the jury members, of someone apparently taking photographs from outside the entrance to the court room.

15. Ground (4) asserted that the conviction was unsafe and/or unsatisfactory.  Apart from relying on the “extremely poor quality” of the police evidence already submitted under Ground (1) and the fact that Hui was not jointly tried with the applicant under Ground (2) it was asserted that there was a lurking doubt, Mr McGowan also prayed in aid the following matters: there was no evidence that the jacket was the applicant’s; she was carrying and not wearing the jacket; the dangerous drugs were in small packets and were well concealed in zipped-up pockets, and there was no admission from the applicant.

Application to adduce fresh evidence

16. In the course of his submission, after the court inspected the jacket in question, Mr McGowan asked for leave to allow the applicant to try the jacket on in court.  Given that such was not done during the trial, the request amounted to an application to adduce fresh evidence.

17. As to the principles governing the reception of fresh evidence on appeal, see Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20, where the Court of Final Appeal said:

“………..Under s. 83V(1)(c) of the Criminal Procedure Ordinance Cap 221, the Court of Appeal, at the hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interest of justice, receive the evidence, if tendered, of any witness. The conditions to be satisfied before receiving such evidence are provided in s. 83V(2): the fresh evidence is likely to be credible; it would have been admissible in the courts below; it is relevant to an issue in the appeal; there is a reasonable explanation for the failure to adduce it in the courts below; and the court is satisfied that it would afford a ground of appeal. See also Chan Tung Cheung v HKSAR [1998] 1 HKLRD 36; HKSAR v Cheng Sui Wa [2003] 4 HKC 571; HKSAR v Cheng Wui Yiu, CACC No. 532 of 2004.

18. Mr McGowan informed us candidly it was his instructions that the applicant tried on the jacket in the presence of her defence counsel during the course of the trial, but that was not done in front of the jury (or the trial judge, it would appear).  In any event, no application was made during the trial for the applicant to put on the jacket in front of the jury. There was no reasonable explanation for the failure to adduce that piece of evidence in the lower court.  On the contrary, it would appear that it was defence counsel’s considered decision not to make such an application.

19. In any event, whether the jacket belonged to the applicant was not determinative of the issue of possession of the jacket.  The prosecution case was that the applicant was carrying the jacket at the time and discarded it when she encountered the police on the staircase.  The applicant was clearly capable of being in possession of the jacket, even if it belonged to another person.

20. There was no reasonable explanation for the failure to adduce the evidence at trial. We therefore refused the application.

Our consideration of the submissions

21. The first ground of appeal can be disposed of shortly.  The judge did remind the jury of the inconsistencies and discrepancies in the police evidence.  Whilst reminding them that the police officers made their observation from different angles at the staircase, the judge specifically pointed out that none of the police party noticed the applicant had a large handbag with her at the time.  The judge asked the jury to consider whether that had “a significant implication on the quality of the observation”.  The judge also gave the jury a direction in similar terms to that given in respect of “flight” or “lies”, in the event that the jury found “it was a deliberate or intentional discarding” of the jacket by the applicant.

22. As properly conceded by Mr McGowan, it was the role of the jury to decide matters of fact.  The jury, as the fact-finder, was made aware of the shortcomings of the police evidence.  The judge had given the jury proper directions on how to approach the evidence and what the prosecution had to prove before the jury could find the applicant guilty. There was no merit in this ground.

23. Although Hui was admittedly the ‘target’ person and the police had already obtained a search warrant to search his home, the fact was that, according to the evidence of the police officers, the applicant was the one who was carrying the jacket in which pockets the dangerous drugs were found.  Further, the applicant threw away the jacket as soon as the police intercepted her and the other two persons.  Whilst items which could be used to pack dangerous drugs were found inside Hui’s home, in fact no dangerous drugs or traces of dangerous drugs were found inside the premises.  We do not agree that the applicant had been unfairly treated because she was not jointly charged with Hui.

24. In his closing speech, the prosecutor did ask the jury to take into account what was found inside Hui’s home in determining whether the applicant was in possession of the dangerous drugs and whether she was trafficking in those dangerous drugs.  In respect of that submission, the judge gave appropriate directions:

“In this regard, I must warn you that you must not infer guilt by association. Even if - and indeed, there is no evidence in this regard – Mr Hui was involved in trafficking activities, you must not draw any adverse inference against the [applicant] because of her association with Mr Hui. Besides, no dangerous drugs were found in Room D. The paraphernalia which might be used for packing of dangerous drugs are all ordinary items. They have other ordinary uses. Whether these matters have any weight in your consideration is a matter for you.”

25. We found no merit in this second ground of appeal.

26. Coming to Ground 3, what had happened was that on 10 October 2012, after the jury had retired, the trial judge learned from the usher that some members of the jury had expressed concern about their well-being, or even safety, after one member of the jury saw two persons apparently taking photographs of the court room from outside the two layers of doors at the entrance.  That place is directly opposite the jury box.  Both counsel were then asked to return and the following was eventually ascertained from the jury:

“Among all of us it is agreed that the incident happened placed pressure to one of the jurors to give a true verdict until the persons that were here, the two persons that were here taking photos, are identified. Also, all of us have a various degree of concerns over our personal safety.”

27. The trial judge then sent the jury out again, saying that he would discuss with counsel to see what assistance could be given to the jury in this regard.

28. There followed a long discussion between the trial judge and counsel.  Suffice it to say that while expressing his views that “the best way out of it [was] just to abort the whole thing and [to] have a retrial”, defence counsel made it abundantly clear that he was not making an application to discharge the jury.

29. When the court resumed after the lunch break, the trial judge indicated to counsel he was minded to discharge that particular juror who had felt “pressured” - after ascertaining who that person was.  By that stage, the prosecution had made arrangement for transport to convey the jury members to their homes or destinations of their choice after the trial concluded.

30. After the jury was brought back and upon the trial judge asking them whether it was still the case that one member felt not being able to reach a true verdict because of what had happened, the jury informed the trial judge that they had not discussed the matter.  The trial judge then asked the jury to continue their deliberation.  After reassuring the jury that there were two layers of doors to the courtroom; that security measures had been stepped up and that arrangements had been made to return them safely home or to whatever place they wish to go, the trial judge said:

“So I think it’s important that you now focus on the consideration of the case and should not let any other matters affect your consideration. I appreciate that one of you has indicated that he or she may not feel she is able to reach a true verdict in the case in the circumstances. These feelings may change over time, maybe when he or she has settled down, and having known the arrangement, may now feel that he or she is now able to do so - able to continue to consider the evidence and reach a proper verdict.

So I will now ask you to go back and continue your deliberation, and I will ask you to focus on the consideration of the case and not let any other matters affect you. In case any of you still have the concern, you are free to let me know and I will give you the necessary assistance and direction as far as possible.”

(Emphasis applied)

31. The jury did not express any further concern before they returned a verdict of guilty against the applicant.

32. The principles regarding the discharge of a jury were addressed in R v Nee Man Tik CACC 220/2003, 28 October 2004, unreported.  Stock JA (as he then was) said:

“8. Whether or not to discharge a jury is a matter for the discretion of the trial judge on the particular facts and in the light of the particular circumstances which the trial court faces, and this court will not readily interfere with the exercise of that discretion: see R v Weaver [1968] 1 QB 353……”

33. We were satisfied that in all the circumstances of this case, particularly when defence counsel deliberately did not apply for the discharge of the jury, the course adopted by the trial judge, in exercise of his discretion, could not be criticized.

34. We do not find the English authority R v Andrei Ivanov [2013] EWCA Crim 614 submitted by Mr McGowan helpful. There was no merit in this ground.

35. In relation to the final ground of appeal, Mr McGowan basically relied on his first two grounds of appeal to support his contention that there was a lurking doubt rendering the conviction unsafe and/or unsatisfactory. We have already dealt with those two grounds and we did not find any merits in either of them.

36. We nevertheless wished to repeat what McWalters J said in the judgment of this court in HKSAR v Chang Che Wei [2012] 2 HKLRD 1151 regarding the proper approach to be taken:

“44. The approach an appellate court should take to an invitation to invoke the “lurking doubt” principle was set out by the Court of Appeal in HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 where, after examining a number of authorities, it distilled the following principles from them: (1) an appellate court should apply the principle with great caution as it does not enjoy the benefit which the jury had of seeing the witnesses and assessing their credibility; (2) a “lurking doubt” does not mean an insubstantial doubt but a substantial remaining doubt; (3) determining whether it “feels” there is a lurking doubt the appellate court has regard not just to the evidence but also its instincts and experience; and (4) where a defendant fails to give evidence it is much less likely that a court will feel there is a lurking doubt.”

37. Applying these principles, we were satisfied that there was no merit in Mr McGowan’s submission.

Conclusion

38. For these reasons, we refused to grant leave to the applicant to appeal against her conviction.