HKSAR v. CHAN HIU YEUNG

[English Translation - 英譯本]
CACC 196/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2014

(ON APPEAL FROM HCCC 316/2013)

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JUDGMENT

Hon D Pang JA (giving the Judgment of the Court):

1.  This is an appeal from the Court of First Instance of the High Court. The applicant has been convicted after trial of one count of “trafficking in a dangerous drug” involving a net narcotic content of 1.59 kg of ketamine (commonly called as K Chai), for which he was sentenced by the trial judge (Deputy Judge Joseph Yau[1]) to a term of 16 years’ imprisonment. The applicant, feeling aggrieved, applies for leave to appeal against conviction in person.

Summary of prosecution case

2.  In the afternoon of 31 January 2013, a team of detectives attached to the special duty squad of Kowloon Region carried out an anti-narcotic operation around the area of Kam Tsin Village on Kam Tsin Raod and Kwu Tung in Sheung Shui. They patrolled in the above area in two groups which were on foot and mobile patrol respectively.

3.  At 5:15 pm on the same day, PW(1)(DPC 7844) who was on foot patrol noticed the applicant near Tsung Pak Long Substation on Kam Tsin Road.  At that time, the 22-year-old applicant was carrying a dark-coloured LV bag on one side with the shoulder strap across his body and holding a yellow reusable bag on the other side, kept looking around and paying attention to the roads in the Kam Tsin Raod area and vehicles passing by.  That location was remote and the applicant appeared to be trying to get a taxi but did not stop those few which had passed by, which arose PW(1)’s suspicion.  Eventually, he and his teammate PW(2)(DPC 4896) went up together to stop the applicant for investigation.

4.  Just at the moment when the above two witnesses crossed the road and showed the applicant their warrant cards, the applicant turned and ran towards a small river (also called “the nullah” in the case) behind the substation.  He also raised his right hand in the attempt to throw the yellow reusable bag in his hand into the river.  Nevertheless,  PW(1) promptly grabbed the applicant’s right hand from behind, while PW(2), together with PW(6) and PW(7)(DPC2797 and DPC 6292) who were originally on mobile patrol, also hurried to the scene one after the other and joined in subduing the struggling applicant.  In the course of it, the applicant fell onto the ground and scraped his wrist(s) and elbow(s).

5.  After the applicant had been subdued, PW(1) checked the above yellow reusable bag.  He found inside a white plastic bag containing two transparent plastic bags, and each transparent bag further contained four gold-coloured sealed tinfoil packages having printed characters “精選茗茶” [meaning specially selected tea] (referred to as “teabags” below).  PW(1) pressed these teabags with his hand and got the feeling that the content was like dangerous drug rather than tea, he thus arrested the applicant for the offence of “trafficking in a dangerous drug”.  The applicant indicated under caution, “It’s only because I owe financial company money that I carry K Chai for others so as to repay.”  The teabags were then taken over for custody by PW(2).

6.  Having gone back to Sheung Shiu Police Station and sent the applicant to see a doctor, PW(1) made a post-record of the above confession in his notebook which the applicant refused to sign because of not agreeing with the content.  The police could not get further evidence from the video recorded interview with the applicant or the subsequent house search.

Summary of defence case

7.  The applicant elected not to give evidence or call any witness.

8.  In view of defence counsel’s cross-examination on the prosecution witnesses, the defence was in general understood as follows[2]:

(1) The police had got information from an informant and were laying an ambush at the scene to await the appearance of “the target person” called “Tong Tin Yau” (transliteration).

(2) The applicant went to the riverside only to meet up with Tin Yau there as asked.  He was not holding any yellow reusable bag.

(3) PW(1) and his colleagues suddenly dashed out from the bush on the opposite side.  The applicant resisted because he did not know what they came for.

(4) Obviously, the police mistook the applicant as Tin Yau.  They kept on calling the applicant Tin Yau and shouting at him to stop resisting.

(5) After the applicant had been subdued, PW(1) seized a yellow reusable bag inside the substation and imposed the suggestion that the reusable bag belonged to the applicant.

(6) The applicant kept on trying to clarify his identity, but was ignored by the police officers at the scene.  On the contrary, they said the police would make a written record for him back in the police station and he just needed to sign.

(7) At the police station, the applicant refused to sign the cautioned statement recorded in PW(1)’s notebook on the ground that he never made such confession.  Someone among the police witnesses mockingly said he might wait and see who the judge would believe when the case was before the court.

(8) To sum up, according to the applicant, he had been induced by Tin Yau to go to the scene and then mistaken by the police as Tin Yau and fabricated with a plant.

Evidence relevant to the main dispute

9.  The above allegation (namely the police had arrested the wrong person and fabricated with a plant) was the main dispute at the trial.

10.  In respect of specific evidence, PW(1) admitted that on the day in question, PW(5)(DSgt 34361) had briefed and told him and the team members that an informant had provided some information and the police were to take notice of a “male aged about 20, 5 feet 6 to 7 inches tall, fat, wearing short black hair and carrying a dark-coloured LV bag with the shoulder strap across the body” around the area of Kam Tsin Village, Kam Tsin Road and Kwu Tung[3].  However, PW(1) did not think that it meant the police had already got a “target person” because they yet had any definite idea of how the face of this person looked like[4].  In any event, PW(1) insisted that he went up to intercept the applicant only because he found him suspicious[5].

11.  On the same point, PW(2)’s evidence was slightly different.  He accepted that basing on PW5’s briefing, the police might be regarded as having a “target person”[6].  However, he added that PW(5)’s precise briefing was: in case of seeing this person and finding him suspicious, you may intercept him for investigation[7].  The above version (ie suspicion was a prerequisite for interception) was supported by the evidence of PW(6) and PW(7)[8].

12.  As to PW(5), his evidence in examination-in-chief[9] and relatively long cross-examination[10] on the “target person” may be summarised as follows:

(1) On the day in question, he did receive information from an informant, which however did not include particulars such as the name, photograph or identity of any person, and therefore he did not agree there was a “target person” in the case.

(2) He admitted that he had instructed the team members that if somebody bearing certain features was also found behaving suspiciously in the area in question, they might intercept that person for investigation.

(3) However, the features that he had mentioned were only conclusions drawn from the “trend” in drug cases.  He mentioned them merely for “sharing experience” with junior team members.  For example, the age (“about 20”) was the age of drug traffickers in general; the height (“1.7 m”) was the average height of Hong Kong men; and the clothing (“wearing in dark and carrying a bag with the shoulder strap across the body”) was the style of dressing found among drug traffickers in recent years.

(4) Initially, PW5 denied having mentioned the two features of build (“fat”) and hairstyle (“short black hair”).  After going through his own notebook, he admitted having included these two features in his briefing. 

(5) PW5 explained that the feature of being “fat” was also from his experience.  He said, “These people usually eat and do nothing and so get such build.”

13.  The evidence of the above prosecution witnesses has been recounted by the trial judge in detail in both his summary and directions (referred to as “summing-up” below) given to the jury[11].  Defence counsel also in her closing submissions criticised PW5 specifically that it was unreasonable for him to claim the briefing to be only “sharing experience”[12].  Counsel also asserted that PW(1) had no reason whatsoever to allege that the applicant was behaving suspiciously[13].  Finally, the trial judge in his summing-up also told the jury that it was for them to decide whether they would accept the criticism put forward by the defence[14].  In other words, the dispute and the relevant evidence have been clearly put before the jury for their determination.

The jury’s verdict

14.  Finally, after a deliberation of 3 hours and 40 minutes (including lunch time[15]), the jury returned a verdict of guilty by a majority of six to one.

Grounds of appeal

15.  On 11 June 2014, the applicant filed his Notice of Application for Leave to Appeal (Form XI) to the Registrar, High Court.  He complained that the trial judge’s summing-up had been biased towards the prosecution and his mention of the defence had not been sufficiently comprehensive.

16.  On 8 December 2015, the applicant filed in this court a thirteen-page affidavit, raising challenges of various nature regarding the trial of the present case.

17.  On 17 February 2016, the applicant mailed to this court: (1) a copy of the letter sent by his solicitors to the police shortly after the occurrence of the case, requesting for the video recording of the CCTV outside Tsung Pak Long Substation; and (2) newspaper clippings regarding a number of cases in which dangerous drugs were trafficked by making use of cake carton, pen, toy, plate, teabag, video game box, sculpture, canned food, girdle, biscuit packing, water pump and fruit [gift] box and so on, consisting of fourteen pages in total.

18.  On the day of hearing (13 April 2016), the applicant further submitted to this court written submissions in eight pages.

Discussion

19.  The applicant’s complaints, having been tidied up, may be summarized as the following grounds of appeal, and this court will discuss them one by one.

Ground (1)

20.  In the applicant’s view, the trial judge erred in admitting the dangerous drug in question as evidence:

(1) There were so-called “governing procedures” regulating the “handing over of exhibits”, which require information such as time, place and the delivering/recipient officer to be accurately recorded.

(2) As the exhibit officer, PW(2), when making mistakes in the record of how the teabags allegedly containing dangerous drug were taken over, was in fact making mistakes in following the governing procedures regulating the handing over of exhibits.  The trial judge should have highlighted this point instead of merely leaving PW(2)’s account for the mistakes to the jury for determination.

(3) PW(2) has made no record of what happened during a period (8:25 pm to 10:46 pm on the day in question) after the teabags had been passed to him and were in his custody, and he had even indicated in court that he had no clear memory of that.  Since the teabags had yet been sealed inside temper-proof exhibit bags in that period, the prosecution has failed to prove that the teabags have not been unlawfully interfered with.

(4) In court, PW(2) indicated that within the two and a half hours mentioned in the above para (3), he had “sat down and eaten a little” and “was sort of packing up the exhibits”.  However, according to PW(2)’s written statement, it was only after he had finished the video-recorded interview with the applicant in the same evening (ie 11:48 pm) that he took over the non-narcotic exhibits from PW(1) and packed them up.  This is sufficient to show that PW(2) has contradicted himself and is unreliable.

(5) According to PW(2)’s written statement, he took over all exhibits in the case after the body search on the applicant (ie 5:49 pm) back at Sheung Shui Police Station, hence there was just no need to wait until 11:48 pm before taking over the non-narcotic exhibits from PW(1) as described in para (4) above.  This further cast doubts on the chain of evidence dealing with the dangerous drug in question.

(6) Since, the defence made clear that the chain of evidence dealing with the dangerous drug in question was in dispute, the trial judge marked the two white plastic bags containing the dangerous drug only as prosecution “provisional exhibits” PP4 and PP5 after PW(1)’s testimony.  However, he allowed them to be formally produced as prosecution exhibits P4 and P5 after PW(2)’s testimony.  By so doing, the trial judge has taken no regard to the doubts arising out of PW(2) testimony on the chain of evidence in the case.

(7) All prosecution witnesses admitted that the teabags had never been opened from the outset to the end, which was a failure in complying with the procedures.  Further, in the police “investigation report” prepared before the exhibits were sent for chemical analysis, the contents of teabags were surprisingly described as suspected dangerous drug in form of “white-coloured” powder, which could prove that they were planted by the police.

Discussion

21.  The applicant cited the regulations in Chapter 53 of the Police General Orders on how police officers should use their notebooks in criticising PW(2)’s record for being incomplete or even incorrect.  The applicant even suggested that the trial judge should have told the jury the contents of Chapter 53 so as to highlight the significance of PW(2)’s mistakes.  In his view, the jury could then be in a better position to see how suspicious PW(2)’s evidence was. 

22.  The point is that the General Orders are not the law.  They are only orders that the Commissioner of Police may make from time to time “for the administration of the police force, rendering the police force efficient in the discharge of its duties and for carrying out the objects and provisions of the Police Ordinance”[16].  The police officer who breaches the General Orders “may” (ie not must) be subject to disciplinary action[17].  As regards Chapter 53 of the General Orders, in particular sections 5[18] and 6(a)[19] which the applicant placed sole reliance on, in the context of Chapter 53 as a whole, it aims at effectively supervise the strict compliance of police officers with the time of reporting on and off duty and rest time assigned to avoid the occurrence of unpunctuality and false report of overtime work and so on.  As to the submission that police officers (in particular detective police officers who are in the investigation of a case) are required to make note of everything that happens while on duty, no matter how important or trivial, this court has serious reservation.

23.  It is of course common sense that police officers should make record of relatively important matters relevant to the case.  It is also for this very reason that PW(2) admitted the record of handing over the teabags was incomplete (see the complaint on [para] 20(2) above ) and the details may be found in the trial judge’s summing-up[20]:

“... PW(2) accepted that he had not made any record in his notebook or witness statement that PW(1) had passed the dangerous drug to him, and he admitted that there was mistake and omission on his part, and he admitted he had omitted this.

As you will remember, during cross-examination, Ms Chow of counsel asked PW(2) to read out the relevant paragraph in his witness statement in court.  You may recall that the paragraph was written like this. It said, ‘By PW(1), the yellow reusable bag, the white plastic bag, two transparent plastic bags and eight gold-coloured packets of suspected dangerous drug were’, and then something else was written down without telling what PW(1) had done with these things, that is to say, without writing down the second half, without writing down in his witness statement what was done afterwards.  As what has just been said, PW(1) has admitted there was omission on his part, and in fact PW(1) handed over those things to him.”

24.  As the applicant has pointed out, the trial judge had left the significance of the above omission entirely to the jury for consideration.  It is indeed correct for the trial judge to do so, albeit different from the applicant’s understanding.  The reason is that whether the prosecution could successfully prove the dangerous drug had in fact found from the accused’s person was a question of fact which ultimately could only be left to the jury for determination.  Before arriving at any conclusion, the jury were entitled to consider all evidence in the case including the incomplete police evidence, and lack of completeness in records does not necessarily mean a break of the chain of evidence.  Provided that the jury believed the explanation given by the prosecution witness (which is PW(2)’s testimony in the present case), they could still find the dangerous drug to have come from the accused.

25.  The principle which has just been explained above is important.  It shows that under the existing law, there is no “procedures governing the handing over of exhibits” as alleged, which required the trial judge to make enquiries.  By the same token, this principle has provided answers to the applicant’s complaints in the above paras 20(3) and 20(4).  The reasons are set out below.

26.  According to PW(2)’s testimony, the chronology of the important events in the present case is set out as follows (all events happened on the afternoon or evening):

	5:50  –  5:51	taken back to Sheung Shui Police Station to see the Duty Officer
	5:52  –  5:59	body search in Search Room No 5
	6:00	measured the weight of the drug exhibits in front of the Duty Officer (the applicant was afterwards taken to see a doctor by uniformed officers)
	7:40  –  7:50	people of Identification Bureau took photos of the drug exhibits
	8:05  –  8:25	people of Identification Bureau lifted fingerprints from the drug exhibits
	10:36 – 10:39	PW(2) assisted PW(1) to photocopy the post-record of the cautioned statement
	10:42 – 10:46	In front of the Duty Officer, dangerous drug exhibits were sealed inside temper-proof exhibit bags, which were handed over to the Duty Officer
	10:47	retrieved drug exhibits from Duty Officer for the applicant to make identification in the video-recorded interview.
	11:01	video-recorded interview concluded
	2:06 am on the next day	drug exhibits were returned to the Duty Officer for his custody

27.  It can be seen that the accusation against PW(2) for failing to make any record applied to the period between two important events only, and the failure was obviously due to PW(2)’s engagement in some trivial matters irrelevant to the case, such as taking a rest or eating.  On the other hand, what did PW(2) maintain in what he said?  It was that during whatever time mentioned above, including the time of using the washroom, he had never put down or left the drug exhibits in the present case.  Under such circumstances, as the jury were entitled to give an affirmative finding on the continuity of the chain of evidence and to believe PW(2), that is to say, they also believed that the drug exhibits had not been unlawfully tempered with before being sealed up, the applicant’s complaint was groundless.

28.  The complaint in [para] 20(6) above remains the applicant’s misconception of the law.  After PW(1) had identified the two dangerous drug exhibits, the trial judge marked them as provisional prosecution exhibits (PP3 and PP4) because PW(1) was not the exhibit officer, he was not in the position to tell how the drug exhibits had been dealt with in the remaining procedures, nor could he give complete evidence on the chain of evidence.  On the other hand, PW(2) as the exhibit officer, after explaining the above chronology[21], in fact completed establishing the entire chain of evidence, and hence PP3 and PP4 became formal exhibits (P3 and P4) with no objection from the defence.  As to the final result, and who were to be believed and who were not, as said above, were still something for the jury to decide.

29.  According to PW(1), it was because the contents of the teabags were not like tea, coupled with the information received from the Narcotics Bureau and the knowledge of teabags being commonly used by drug traffickers to conceal drugs[22] that he arrested the applicant.  In cross-examination, when he was asked if the teabags would be punctured for checking what was inside when measuring the weight of the drug exhibits, he replied by saying “definitely not”[23].  In that case, this court does not see any doubt arising as a result of the police officers’ not opening the teabags to check.  On the contrary, the “guilty” verdict arrived at by the jury has shown complete rejection of the allegation of police fabrication.  Although the applicant has provided to this court the newspaper clippings (see para 17 above) and the numbers of the two High Court cases (on the date of the hearing) to try to show that the police did open secret drug packages in some cases, the above conclusion cannot be overridden.

30.  As this court has indicated at the hearing, documents which are not produced at the trial in general cannot be considered during appeal.  This is the law.  This is the reason why this court would not and could not pay any regard to PW(2)’s written witness statement and the police investigation report in the present case (see paras 20(4), 20(5) and 20(7) above).  Furthermore, the doubts raised by the applicant on these documents are only questions on some collateral matters that had not been tested in cross-examination and/or were irrelevant to the core issue of the present case.  For example, by judicial experience, all dangerous drugs regardless of their types are generally white in colour, and therefore the doubt concerned could not have influenced the jury’s verdict.  Finally, the applicant was represented by counsel who has quite a number of years’ experience, and she chose not to cross-examine PW(2) on those issues, the applicant at this stage does not have any ground to complain.

Ground (2)

31.  The applicant complained that it was wrong for the trial judge not to allow provisional defence exhibits PD4 and PD5 to be formally produced.

Discussion

32.  Provisional defence exhibits PD4 and PD5 were a black coat and a pair of black sports pants respectively.  According to the defence counsel, the applicant was wearing these two items of clothing when he was arrested and they were taken away and kept in his “prisoner’s property” during his detention and were taken out at the time of the trial.  The point is that this was only the defence counsel’s own version. She did not adduce any evidence in this regard or obtain consent from the prosecution to produce these two items of clothing by way of admitted facts.  On the contrary, at the conclusion of the testimony of the last prosecution witness (PW7), the defence even expressly said that she would not seek to turn PD4 and PD5 into formal defence exhibits[24].  Under such circumstances, it was correct for the trial judge not to turn PD4 and PD5 into formal exhibits, and he had no alternative indeed.

33.  Furthermore, as to what has been described above, the defence was in fact trying to make use of the mechanism concerning provisional exhibits to cross-examine the prosecution witnesses with the two pieces of clothing which had not been formally produced in order to make their testimonies sound incredible[25].  An example is the fact that the defence played back the applicant’s video-recorded interview in court with the sound track switched off and then requested the prosecution witnesses to compare the applicant’s clothing as seen on the TV screen with PD4 and PD5.  This was incorrect to do although the trial judge did not criticise or stop.  In any event, such cross-examination has all been conducted in front of the jury, and hence it can be said that the defence had achieved their purpose in full; PD4 and PD5 were not turned into formal exhibits at the end, and therefore no prejudice whatsoever has been done to the applicant.

Ground (3)

34.  The applicant submitted that PW(1)’s testimony was self-contradictory and not trustworthy:

(1) PW(1) repeatedly said in examination-in-chief that when he pressed the teabags, he felt powder-like substance inside; under cross-examination, after looking at the real object returned after chemical analysis, he changed to say he felt granule-like substance inside.

(2) PW(1) claimed that by pressing the teabags, he suspected the contents to be dangerous drug.  This point is important.  However, he did not make note of it in the notebook.  On the contrary, under the defence challenge, he said he could decide what had to be recorded by himself.  In this regard, the trial judge should have, but did not, given clear directions to the jury.

(3) Although the video-recorded interview clearly showed that the applicant was all along wearing black workout pants after the arrest, PW(1) insisted that he was wearing dark-blue jeans.  Even after viewing the video recordings, he still insisted and refused to change, which showed there was serious problem with his integrity.

(4) As regards the post-recorded cautioned statement, PW(1) admitted that he had not formally requested the applicant to sign on the notebook.  However, he wrote down on his own notebook that the applicant had refused to sign.  These two versions contradict each other.

Discussions

35.  PW(1), apart from changing to say that the substance was in “granular” form, also repeatedly said that the feeling of pressing the teabags was the same as pressing the substance returned after chemical analysis.  In other words, PW(1)’s concession under cross-examination was only that the wording was inappropriate.  It was for the jury to decide if they had any other view. 

36.  PW(1) said he could decide by himself what had to be recorded.  This court does not find him wrong to say so.  In case of any challenge, the jury could decide on the facts in view of the witness’ explanation.  This court does not think that he must make a record of the act of pressing the teabags in his notebook.

37.  This court has not viewed the video-recorded interview in question.  We have no idea whether it did clearly show the applicant’s clothing.  If it did, the jury might have negative views on PW(1)’s integrity.  If it did not, it goes without saying that the applicant’s complaint could not be established.

38.  In any event, defence counsel has extensively addressed the above complaint in her closing submissions[26], and the trial judge in his summing-up again mentioned the above three aspects in PW(1)’s evidence.  In other words, the jury were clear about the issue concerned and their verdict reflected that they believed the prosecution witness.

39.  As to the complaint in para 34(4) above, the prosecution witness explained: in accordance with the procedures, after making the post-record, the statement would first be given to the prisoner for him to read it over, and then amendments and addition would be made, after that the declaration would be copied onto it, and only after all these would the prisoner sign to confirm.  However, the applicant, just upon reading it, indicated that he disagreed with the contents, and hence the witness simply knew the applicant would not sign without making the request. That was the reason why he simply wrote down on the record to indicate the applicant’s refusal to sign.  This court does not see that any suspicion could possibly arise from this explanation.  In any event, the trial judge has given proper and clear directions on matters relating to the confession to the jury in the summing-up[27].

Ground (4)

40.  The applicant complained that the evidence given by PW(5) to PW(7) was contradictory.

Discussions

41.  The applicant meant that there were disparities in the details of the evidence given by the above prosecution witnesses, such as that at the moment when it was decided to take action, whether the sergeant had given any order, whether he/they afterwards run together with the other two detectives to assist PW(1) and so on. The problem is that such disparities have been sufficiently addressed by the defence counsel in her closing submissions[28].  The trial judge has also in the summing-up rightly reminded the jury of how to deal with and consider the contradictions among witnesses.  Therefore the applicant’s complaint is groundless.

Ground (5)

42.  The applicant complained that the evidence given by PW(4) (a duty officer of Sheung Shui Police Station) was inconsistent with those given by PW(1) and PW(2).

Discussions

43.  The applicant meant that there was contradiction in the evidence given by the duty officer and the other two detectives on whether PW(1) was present in the course of the two events, in which the drug exhibits were weighed and sealed up in temper-proof exhibit envelopes.  Nevertheless, it can be seen from the duty officer’s testimony that when he said that only he and PW(2) were present at that time, he only based on his notebook record[29].  He had never been asked if he had any independent memory about the incident or if he would have made note of any police officer other than the exhibit officer.  In any event, the defence alleged that the police had planted the drug, but such planting of drug could be done by any police officer at any time, and therefore whether PW(1) was present in a certain step after the arrest cannot be said to be significant. Moreover, the defence at the trial only disputed the chain of evidence before the drug exhibits had been sealed up (see note 21), and therefore whether PW(1) had taken part in sealing the exhibits was simply not in issue.  The defence did not dispute that what had been sealed up were in fact dangerous drug.

Ground (6)

44.  The applicant complained that for the exhibits that had already been in the case, there were doubts; for the evidence yet available, the police in fact deliberately avoided seizing them:

(1) All prosecution witnesses testified that the applicant had struggled so vigorously at the scene that his coat was torn.  In that case, the yellow reusable bag would not have been intact as it was produced in court without the slightest damage.

(2) The police could not find the applicant’s fingerprint on the drug exhibits, which was a piece of cogent evidence to rebut the police allegation.  The failure of the police in following up an identifiable fingerprint found on the drug exhibits[30] showed their plainly selective attitude in taking evidence, which was unfair to the applicant.

(3) The police should have tried to take DNA evidence from the drug exhibits and followed up the evidence in this regard.  They did not do so and maintained in taking evidence selectively.  For justice to be done, the Court of Appeal should order the authority concerned to take DNA evidence in the present case and carry out investigation.

(4) The applicant sent a letter through his lawyer (see para 17 above), requesting them to provide the video recordings of the CCTV outside Tsung Pak Long Substation so as to prove the truth, but the police gave no response at all.  This is another example demonstrating that the police took evidence selectively.  For justice to be done, the letter in question should have been produced as evidence at the trial (but it was not), and hence the jury did not know the evasive attitude adopted by the police.

Discussions

45.  The yellow reusable bag was not bound to be damaged because of the applicant’s struggle, and the defence after all has addressed this point in her closing submissions[31] to try to raise the jury’s suspicion, albeit in vain.

46.  It is within judicial knowledge that a person who touches something may not leave any fingerprint.  An identifiable fingerprint does not necessarily lead to the discovery of the fingerprint owner because the result depends on a lot of factors, which is also within judicial knowledge. In para 6ii of the “Admitted Facts”, it was said that the identifiable fingerprint “lead to nothing and was still under verification” [32], and it means that the police had not yet found out whose fingerprint it was.  In any event, the trial judge in his summing-up indicated there was no evidence in the present case that proved the applicant had had contact with the dangerous drug in question, and it was left for the jury to decide how this point affected their verdict[33], and such directions were already very favourable to the defence.  The trial judge might (but did not) add by saying this: somebody who delivers dangerous drugs may not have touched the drugs inside the bag.

47.  Same as fingerprints, the presence of DNA evidence is not necessarily helpful to the prosecution or the defence.  Moreover, it is completely up to the prosecution and the defence to decide how to take evidence and what evidence to take, and the court just could not and would not intervene.  For example, it is for the prosecution to consider the impact of not seizing the recordings of the CCTV outside the substation on the prosecution case.  Conversely, even if the police had made no seizure, the defence could ask for the recordings in question from the authority concerned through his solicitors.  Therefore, the applicant’s letter sent to the police through his solicitors was not helpful to his defence.  As a matter of fact, the letter was sent two days after the case, which was a long time before the date of the trial, and the defence have had sufficient time to collect the evidence by themselves.  In the above discussion, it is presumed that the exhibit in question did exist; whereas another possibility is there was simply no CCTV outside the substation.  There was no evidence in this regard in the case.

Ground (7)

48.  The applicant suggested that the prosecution should not have made closing submissions in the present case according to the law.

Discussion

49.  Since the applicant had not given evidence or called any witness, he suggested that the prosecution should not have made any closing submissions before the jury.  The authority which the applicant relies on is Overview on Hong Kong Laws (《香港法概論》)[34] (p 53):

“Where there is no application for having no case to answer or such application has been rejected, the accused may elect if he/she is going to give evidence in court. Since the burden of proof lies on the prosecution, the accused is entitled to remain silent, and the court cannot draw any adverse inference against the accused for the election of not giving evidence in court. If the accused elects not to give evidence and not to call any defence witness, then he may proceed with the closing speech right away. Under such circumstance, the prosecution may make a final speech on legal points only and not on the facts. At this stage, the court has to consider if the evidence adduced by the prosecution is up to the standard of beyond all reasonable doubt, which is a much higher standard than that for no case to answer, and hence even if the court may have found there is a case to answer, the court may still at this stage find that the evidence fails to met the criminal standard of proof and hence dismiss the charge, nevertheless, the court may convict the accused if it finds there is sufficient prosecution evidence. The advantage of electing not to give evidence in court is that the accused will not be subject to cross-examination, but the disadvantage is that the accused leaves only the prosecution’s version for the court to determine the case. In making this election, the accused has to consider many factors, such as the strengths and weaknesses of the evidence adduced by the prosecution, the defence put forward by the accused and so on. Although the defence counsel would give professional advice to the accused on these issues, it must be for the accused himself/herself to decide whether he/she gives evidence in court.”
(emphasis in italics added)

50.  Since the above authority is one of the books for promoting legal education to the general public, the excerpted part is not comprehensive.  On the contrary, according to the judgment of the English Court of Appeal in R v Bryant & Oxley [1978] 2 All ER 689, where an accused was represented by counsel and did not give or call evidence, the prosecution had a right to make a closing speech.  The only point to add is that in the view of the English Court of Appeal, it should not be necessary to exercise that right in every case, and would be more appropriate to do so in long and complex cases, and the speech should be brief (p 694G-J):

“Prosecuting counsel in the case of an accused who is himself represented by counsel and gives no evidence and calls none has the right to sum up the prosecution’s evidence or, in modern parlance, to make a closing speech at the close of the evidence. It is, however, a right which in our opinion it should only be rarely be necessary to use save possibly in long and complex cases, and whenever used should bear, as should the majority of speeches by prosecuting and defence counsel, the becoming hallmark of brevity.”

51.  It is worth noting that it is only the opinion of the English Court of Appeal that the exercise of the right should go slow.  This opinion of course carries a lot of weight but it is not the law.  For example, the Hong Kong Court of Appeal, in affirming the prosecution’s right to make a closing speech under the above circumstances, has not added the same reservation[35]. From the report of Man Ching Ip in the Hong Kong Law Reports (see note 35), Bryant & Oxley is even one of the precedents that has been considered by the Court of Appeal in Hong Kong, but the Court of Appeal has not in its judgment reminded prosecutors in Hong Kong of going slow in exercising the right.

52.  To conclude, the opinion of the English Court of Appeal aims at ensuring that the accused has a fair trial, and the trial judge and the counsel of both sides in the present case knew the relevant principles well.  It was only after the trial judge had been aware of the content that the prosecution intended to submit and the prosecution had assured that the speech would be brief and under control, and thereafter having no objection from the defence that the trial judge allowed the prosecution to make closing submissions[36].  Eventually, the prosecution simply briefly urged the jury not to reject the prosecution’s case for the reason of the discrepancies among the witnesses on some trivial matters such as the applicant’s clothing.  Since the defence had extensively cross-examined the prosecution witnesses in great detail regarding various parts of the case, the prosecution’s submissions are understandable and well within the boundary.

Ground (8)

53.  The applicant complained in general that the trial judge’s summing-up was not sufficiently comprehensive or fair.

Discussion

54.  After carefully going through the whole summing-up, this court has the view that the jury has been given fair and comprehensive directions on both facts and law.

Conclusion

55.  None of the applicant’s grounds of appeal has been established, and the application is dismissed.