HKSAR v. NG SIU KAM

CACC 474/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 474 OF 2009

(ON APPEAL FROM HCCC NO. 165 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 3 December 2009, following a trial in the Court of First Instance before Tong J and a jury, the applicant was convicted (by a majority of 6 to 1) of conspiracy to traffic in a dangerous drug, contrary to section 4 (1) (a) and (3) and section 39 of the Dangerous Drugs Ordinance, Cap. 134, and section 159A and 159C of the Crimes Ordinance, Cap. 200.  The particulars of the charge were that the applicant:

“… between 1 September, 2008, and 13 December, 2008, in Hong Kong, conspired together with Wong Shun Wing to unlawfully traffic in a dangerous drug, namely, ketamine.”

2.  Upon his conviction, the applicant was sentenced to 24 years’ imprisonment.

3.  Having heard submissions, we refused the application for leave to appeal against conviction but allowed the application for leave to appeal against sentence and, treating that application as the appeal, reduced the sentence from 24 years imprisonment to 20 years.  We said that we would give our reasons later and do so now.

The core issue

4.  The prosecution case was based entirely on the evidence of the single co-conspirator cited in the indictment, Wong Shun Wing.  Wong testified for the prosecution under a partial immunity.  If his evidence was not believed, the prosecution failed.  As the judge acknowledged in his directions to the jury, there was essentially one issue only for the jury to determine and that was Wong’s “credibility”: could the jury be sure that they could rely on Wong’s evidence to the effect that he had conspired with the applicant to traffic in a dangerous drug?

Background

5.  Wong testified that at the end of September 2008 he was approached by the applicant to act as a courier, bringing dangerous drugs from the Mainland into Hong Kong.  Wong said that he had met the applicant a couple of years earlier and they were well-known to each other.  According to Wong, he was promised a reward for each successful importation, something in the region of $1,500 for every 500 grammes of ketamine.

6.  Wong said that, within a few days of agreeing, he received his first set of instructions from the applicant to collect a consignment of ketamine from the Mainland and to bring it back to Hong Kong.  He did as instructed, returning with 500 grammes of ketamine and receiving a cash payment of $1,500 from the applicant.

7.  Wong could not recall exactly how many times he had acted on the instructions of the applicant to journey to the Mainland in order to smuggle drugs into Hong Kong.  He spoke of between 10 and 20 times, the minimum number of occasions being 10.  On each occasion, said Wong, he would bring back packages of ketamine.  As he understood it, most of the consignments weighed 500 grammes or 1 kilogram, the largest being 1,180 grammes.

8.  On 11 December 2008, said Wong, working under the instructions of the applicant, he collected a consignment of drugs from the Mainland and returned to Hong Kong.  He carried the drugs in a backpack.

9.  Wong testified that, on that day, a few minutes after returning to Hong Kong and passing through immigration control, without any warning he was set upon by a group of men.  While it was implicit in his testimony that he rapidly understood that the persons attempting to subdue him were police, he said that none of the persons announced themselves as police nor did they show their warrant cards. 

10.  The evidence of the police officers was at odds with Wong’s evidence in that they testified that they had approached Wong, identifying themselves as police officers, and it was then that Wong had attempted to flee, struggling with them.

11.  Wong testified that, after he had calmed down and had been informed that he was being arrested for drug trafficking, he admitted his guilt.  Forensic examination of the drugs found in Wong’s backpack revealed that he had been carrying some 983 grammes of a ketamine mixture containing 816.77 grammes of narcotic.

12.  Wong testified that, having admitted his guilt, he was placed under considerable moral pressure by the police to give them full details of his trafficking activities, especially details of those with whom he worked.  He spoke of five or six officers, all in the same room, pressing him on the issue.

13.  Again, the testimony of the police officers was at odds with Wong’s evidence.  The police officers denied that Wong had been subjected to any such pressure and further denied that Wong had at any time been left alone in an office with five or six officers.

14.  Concerning the making of his first video-recorded interview under caution, Wong testified that, not knowing what to do for the best and at that time not wishing to implicate the applicant, he gave a description of the woman who had supplied the ketamine to him in the Mainland, inventing the name of “Ah Chi” for her. 

15.  It was Wong’s testimony that, after his first cautioned interview, the police still pressed him “to tell the whole truth of the matter”.  He said that he decided to do so.  As to why he had this change of heart, Wong spoke of a growing appreciation of the ramifications of his actions and of the need to show his family that he was determined to change.  Wong accepted that at the time he knew that accomplice witnesses were able to earn reductions in their sentences.

16.  Again, the police evidence was not on all fours with that of the applicant.  It was the police evidence that Wong was not subjected to any pressure and it was he who volunteered to give evidence as an accomplice.

17.  As it was, although he was offered no immunity in respect of the drugs found on him, Wong testified under the protection of an immunity in respect of all the other drugs that were trafficked pursuant to the conspiracy.

18.  At trial, the applicant chose not to testify nor to call witnesses.  It was, however, the defence case that Wong bore a grudge against the applicant and it must have been for that reason that Wong chose to give false evidence against him. 

The grounds of appeal

19.  Mr Marray’s single ground of appeal against conviction was that it was unsafe and unsatisfactory.  He advanced three reasons to support this ground. 

20.  First, having regard to the factual circumstances of the case, more especially that the prosecution case relied entirely on the evidence of Wong, an accomplice, who was in a number of respects a suspect witness, it was incumbent on the judge to give a stronger warning to the jury than he did of the dangers of convicting the applicant on Wong’s testimony.

21.  Second, in directing the jury to consider whether, where the evidence of Wong and the police witnesses was at odds, there may be grounds to reject the evidence of the police witnesses, the judge dealt unfairly with the relative credibility of Wong and the police witnesses, this being to the applicant’s prejudice.

22.  Third, in respect of certain CCTV photographs which Wong testified showed the applicant in the ATM area of a bank at about the time when money had been transferred from that bank to Wong’s account, the judge erred in not giving a Turnbull direction.

The first ground of appeal

23.  It was Mr Marray’s submission that, having regard to the ‘special circumstances’ of the case, it was incumbent on the judge to give a stronger warning to the jury than he did of the dangers of convicting the applicant on Wong’s testimony.  Among the special circumstances to which Mr Marray referred were the following.

24.  First, the only evidence against the applicant was that of Wong, an uncorroborated accomplice.  Second, in a number of material respects Wong’s evidence was contradicted by the evidence of other prosecution witnesses, namely, the police officers.  Third, Wong was an admitted liar, admitting that he had lied in the course of his first cautioned interview.  Fourth, Wong had a criminal record.  Fifth, the defence assertion that Wong bore a grudge against the applicant and therefore had the motive to bear false witness was one of some substance, the applicant having told the police at the time of his arrest that such a grudge existed.

25.  In the present case, as we have said, the jury in essence had only one issue to determine: could they be sure of the accuracy and truthfulness of Wong’s evidence that he and the applicant had conspired to traffic in ketamine?  It is not disputed that this issue was spelt out in the clearest terms on more than one occasion.  The criticism that has been made is that the judge failed in sufficiently strong terms to warn the jury that, in considering this issue, they should be aware of the danger of convicting on Wong’s uncorroborated testimony. 

26.  In our judgment, that criticism was unfounded.  

27.  Early in his directions, the judge reminded the jury of the fact that Wong had a motive to give false testimony, namely, in order to obtain a lesser sentence.  He further reminded the jury of the defence allegation that Wong bore a long-standing grudge against the applicant, another motive to seek to ‘frame up’ the defendant.

28.  It was when referring to the prosecution case that the judge first made mention in direct terms of the need to exercise caution when considering Wong’s evidence.  He said:

“Miss Chan for the prosecution pointed out that, in this particular case, you have the direct evidence of a co-conspirator, telling you what had happened and what role the defendant had played in the drug trafficking activities. Miss Chan accepted that there are many factors pertaining to [Wong's] credibility which you should take into careful consideration and it may well be dangerous to act on the unsupported evidence of [Wong] who was a co-conspirator and, in fact, an accomplice in the drug trafficking activities.”

29.  The judge then proceeded to recall in summary form the criticisms of Wong’s evidence made by defence counsel.  These criticisms, 14 in number, were all, either directly or indirectly, to the effect that Wong was a witness incapable of belief.  The judge concluded the summary by reminding the jury of the following criticisms:

“… (15) it would be dangerous to rely on [Wong’s] evidence because he had nothing to lose by making up a story against the defendant; (16) [Wong] was caught red-handed and he just used the opportunity to seek revenge on the defendant, hoping to get a lighter sentence…”

30.  Against this background, towards the end of his summing-up to the jury, the judge then proceeded to guide the jury in direct terms rather than recalling what counsel for the prosecution or defence had said:

“So the crucial question is can you believe [Wong] when he said it was the defendant who had conspired with him and made arrangements for him to deliver the different quantities of ketamine to Hong Kong? That is the main question.

In considering whether [Wong] was a truthful witness, you must use your common sense and you should take into account the following matters, or other factors which you think are relevant.  I will name a few.  (1) [Wong] had a criminal record involving dishonesty and he was sentenced to Training Centre.  (2) He is someone who would agree to deliver drugs for money, even though the purpose, according to him, was to support his family and his studies, and he had done it for 10 to 20 times.  Can you believe someone like that?  It would indeed be dangerous to accept and rely on his evidence without some supporting evidence.  (3) Although [Wong] was not advised by any lawyer at the earlier stage, he knew that, by being a tainted witness, he might get a reduction in sentence.  Would he therefore fabricate a story and use the defendant as a scapegoat in order to get a lighter sentence?  (4) Apart from his words, there is no other evidence to support [Wong’s] evidence and the defendant to be his boss for the delivery of drugs.”  

31.  In light of these matters, the jury would have understood that Wong’s evidence had to be approached with considerable caution.

The second ground of appeal

32.  Central to the defence case was the assertion that Wong was a witness devoid of credibility.  One of the platforms upon which the defence sought to demonstrate this lack of credibility was the fact that in a number of respects the evidence of Wong, the principal prosecution witness, differed from that of the other prosecution witnesses, namely, the police officers.  The judge reminded the jury of this in the following terms:

“… the defence stated that [Wong] was a liar and he was lying about how he was arrested and why he decided to give a non-prejudicial statement. It was said that what [Wong] said was different from the evidence of the police officers. The defence said that there was no reason for the police to lie, so it must be the case that [Wong] was lying.”

33.  The judge went on to direct the jury that, in respect of the issue of credibility, it was not right “to assume” that the police officers must have been telling the truth.  It was instead necessary for them to consider the evidence of Wong and the police officers and, in the light of that evidence, to determine where the truth lay. 

34.  Mr Marray took no issue with this direction.  He submitted, however, that, when the judge gave guidance to the jury concerning matters that they may take into account in determining the issue of respective credibility, he did so in a manner that suggested that the evidence of the police officers should not be believed.  The inference to be drawn from that, suggested Mr Marray, was that Wong was telling the truth in his evidence not only in respect of his dealings with the police but also in respect of his dealings with applicant.  In the circumstances, said counsel, the direction was unfair and to the material prejudice of the applicant.

35.  When considering this submission, it is to be remembered that at the beginning of his directions to the jury the judge informed them in clear terms that they alone were the judges of the facts, that it was for them to decide what evidence they accepted and what evidence they rejected and that, if he appeared to have a view of the evidence with which they did not agree, they should disregard that view of the evidence.

36.  As to the passages criticised by Mr Marray, the judge said the following:

“If motive is an important factor to consider whether someone is lying, then the question may be this: what is the purpose of [Wong] lying to you about the circumstances of his arrest now that he actually wanted to co-operate with the prosecution and testify under an immunity?

Similarly, you may ponder why [Wong] had to make up a story of how the police had explained to him that he was caught red-handed and he would not be able to deny and so on.  Would it not be easier and better for him just to say that, yes, everything about wanting to admit the offence and be a tainted witness did come from himself?  So then he can claim all the credit.”

37.  The judge then went on to refer to the first video-recorded statement made under caution by the applicant, reminding the jury of certain sections of that interview.  He then said the following:

“I don't know whether you would agree that it appears that the [interviewing] officer was really doubting [Wong’s] account. The officer was, you may think, using common sense to challenge what [Wong] had said. After this series of questions and answers and some more questions, then the interview was completed.

Members of the jury, on that basis, after the interview and where the officer was apparently not really accepting [Wong’s] account, would it be very strange that, after the interview, the officer may say a few things to express their concern regarding [Wong’s] situation?

Of course, if the police officers did what [Wong] said that they had done, that would be very irregular and actually improper.  Could that be the reason why the officers might not want to admit to this part of the background events?” 

38.  Considered in isolation, this assistance to the jury may be seen as one-sided.  However, when considered in the context of the judge’s directions as a whole, as we have already illustrated, the judge was at pains to make clear to the jury that the evidence of Wong himself had to be approached with considerable caution.

39.  Importantly, immediately after he had directed the jury in the terms set out above, the judge emphasised that the assistance he had given was intended to illustrate only that they did not have to approach the evidence of the officers on the basis that it must be true.  In this regard, he said:

“I am not suggesting at all that you should believe, or disbelieve, [Wong] or the police. I only want to point out that you cannot proceed on the basis that the police officers must be telling all the truth.

Of course, at the end of the day, it is for you to decide who is a credible witness and what part of the evidence is true and reliable.”

40.  In the circumstances, we were satisfied that there was no substance in Mr Marray’s submission that the directions were wrongfully prejudicial to the applicant.

The third ground of appeal

41.  In the course of his testimony, Wong referred to various banking records which he said related to payments made to him by the applicant.  The records indicated that on one occasion the moneys credited to his account had been paid into an ATM machine at a branch of the Bank of China, the area being monitored by a CCTV camera.  A recording made at about the time of the payment was produced into evidence by the prosecution.  Wong testified that the recording showed images of the applicant.  More particularly, he said that he was able to recognise the applicant in a number of still photographs taken from the recording.

42.  This was disputed by the defence, the assertion being that the person in the still photographs was not the applicant whose features in a number of ways were different.  During cross-examination of Wong, defence counsel put a number of questions to him to suggest that he was mistaken in his identification.

43.  The applicant chose not to give evidence in his defence.  However, as the issue of the correctness of his identification in the still photographs had been raised, it was agreed that the applicant would sit next to his counsel for a period of time so that the jury could observe him, comparing his features to those in the still photographs.  The judge explained the procedure to the jury in the following terms:

“… as you can see, the defendant is now sitting next to his counsel. He has elected not to give evidence, but I think the arrangement is appropriate for you to have a close look at his appearance, and you can, if you wish, refer to whatever or whichever photograph you wish to look at more closely, and then you can do the observation of the defendant as he now appears. You can take your time.”

44.  As unusual as the procedure may be, there is precedent for it, the most recent referred to us being R v Downey [1995] 1 Cr App R 547.

45.  Mr Marray took no objection to the procedure adopted.  He accepts that at the close of evidence when the issue was discussed between counsel and the judge, prior to closing speeches and the summing-up, he accepted, as did prosecuting counsel and the judge, that a Turnbull direction was not required in respect of the identification by Wong of the applicant in the CCTV photographs in the ATM area.  That consensus was reached on the basis that the applicant’s case was that Wong was framing him, not that he was mistakenly identifying the applicant in the photograph.  In his written submissions of 20 May 2011, Mr Marray submitted that in retrospect he had erred in not asking for a ‘Turnbull’ direction and now submitted that the judge was an error in not giving such a direction.

46.  The Turnbull rules were primarily designed to avoid the risk of mistaken identity in cases of fleeting encounters.  In the present case, however, there was no such issue.  It was conceded that Wong had known the applicant for two years or more.  The issue was whether Wong was able correctly to recognise the applicant as the person appearing in several still photographs, an issue that depended very much on the quality of the original CCTV recording, the quality of the still photographs taken from it: matters of distance, lighting, angle and the like.  The jury had seen the CCTV recording, they had the still photographs with them and were able to compare the likeness in the photographs with their view of the applicant himself.

47.  The Court of Appeal in Downey acknowledged at p. 555 that:

“A mandatory direction is justified in cases of identification by a witness, whose evidence is based on his recognition of the defendant as the person whom he saw at the relevant time, because the jury is told that the experience of the Courts has shown that honest and even convincing witnesses are fallible on matters of this sort, hence the need for a special warning... ”

48.  But, as the Court went on to observe:

“…inviting the jury to consider whether the person shown in a photograph is the defendant who has appeared before them is a different process.”

49.  The Court held that there was no invariable rule that, when a jury had to consider whether a person shown in a photograph was the defendant, the defendant himself being before them, they had to be given a specific direction on the dangers of relying on such evidence, that is, a Turnbull direction. Rather, the appropriate direction will depend on the circumstances of each case, and when no special factor arises, the absence of a specific warning cannot of itself amount to a misdirection.

50.  In respect of Wong’s identification of the applicant from the still photographs, the judge directed the jury in the following terms:

“The defence pointed out to [Wong] that the person appearing in the various photographs was not the defendant. Defence counsel pointed out that the most prominent differences in appearance between the defendant and the person in the photographs could be found in the lips, the ears, nose, the cheekbones and the face. [Wong] disagreed. He said that the differences were caused by a different angle of observation. He further added that the defendant was thinner before because he was taking drugs and he had put on weight since the case had been now over a year.

Members of the jury, you have seen the photographs and arrangement was made for you to have a closer look at the defendant during the trial. It is for you to decide whether the person in the photographs, as [Wong] said, was indeed the defendant. It is a matter for you to decide. … whether you accept [Wong’s] explanation about the differences in the appearance is again for you to consider.

It was indeed the case that the photographs were taken some time ago and at an elevated angle because of the CCTV camera, but members of the jury, there is no evidence in our case to suggest that the defendant had been taking drugs.  This point is only relevant to the issue of [Wong’s] identification of the defendant to be the person in the photographs.  You should not rely on [Wong’s] comments in this regard to infer that the defendant must be involved in illegal activities or in this particular offence as [Wong] has suggested.” 

51.  Later, the judge said at p. 25:

“[Wong] had known the defendant for quite some time before the arrest. It would not be surprising that he could recognise the defendant and even knew he had a tattoo on the back as they had been in Training Centre together for some time. But [Wong] was not present at the ATM machine area when the photographs were taken. Whether he has correctly recognised the defendant in the photographs would be a matter for you to consider.”

52.  The judge further put matters into context when he explained:

“Mr Marray is right in saying that the main point in this trial is the credibility of [Wong]. The prosecution have produced the telephone records, the bank statements and the CCTV photographs to support [Wong’s] evident but, as Mr Marray has pointed out, none of these documents can show independently that the defendant was involved in the drug trafficking activities as [Wong] said. You still have to go back to the words of [Wong].”

53.  In our judgment, the directions given to the jury were, in the circumstances of the case, clearly directed to the issues that had arisen in the course of the trial.  There was no additional requirement for any form of Turnbull warning.

Summary

54.  For the reasons given, we were satisfied that the grounds advanced on behalf of the applicant, considered alone or together, did not render the conviction either unsafe or unsatisfactory.

The appeal against sentence

55.  On the one count of conspiracy to traffic in the dangerous drug, ketamine, the applicant was sentenced to 24 years’ imprisonment.  It was Mr Marray’s submission that in all the circumstances this sentence was manifestly excessive.  We agreed with that submission, reducing the sentence to 20 years’ imprisonment.

56.  In sentencing the applicant, while the judge addressed the factors pointing to the nature and extent of the conspiracy to traffic in ketamine, he failed to assess an appropriate starting point which could then be adjusted, if appropriate, having regarding to aggravating or mitigating factors.

57.  As to the duration of the conspiracy, the evidence showed that Wong made his first excursion to the Mainland in order to collect and import ketamine in early October 2008, being arrested on 11 December 2008.  The conspiracy endured therefore for a period of approximately two and a half months.  During that time, although Wong could not be certain as to the number of times he brought drugs from the Mainland, he made a minimum of 10 such trips.

58.  As to the total quantity of ketamine trafficked, the evidence again allowed only for an estimate.  Wong spoke of importing a minimum of 500 grammes of ketamine on each of the 10 occasions on which he imported the drug into Hong Kong.  However, he testified that on occasions he did bring in greater quantities.  In this regard, the evidence revealed that, when he was arrested on 11 December 2008, he was found in possession of 816.77 grammes of the narcotic.  On the evidence therefore, the applicant being entitled to the benefit of any uncertainty, it can be safely said that a minimum of between 5 and 5.5 kilograms of ketamine must have been imported.

59.  In June 2008, in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, this Court laid down new guidelines for sentencing in respect of trafficking in ketamine and ecstasy, the two drugs to be indistinguishable for purposes of sentencing.  For trafficking in over 1,000 grammes of ketamine or ecstasy a tariff of “14 years upwards” was set.

60.  In the present case, in our view, avoiding mere arithmetical progression but bearing in mind that, as a result of the conspiracy, between 5 and 5.5 kilograms of ketamine were trafficked, an appropriate starting point would have been one of 16 years’ imprisonment.

61.  To that, however, must be added the following aggravating factors.

62.  First, while the applicant’s role in the greater scheme of things is not known, as between himself and Wong, he was the recruiter, the paymaster and the one who directed the course of the conspiracy.  The applicant’s culpability was therefore that much the greater.

63.  Second, the conspiracy was not short-lived.  It ran for some two and a half months during which Wong, under the applicant’s direction, made at least 10 trips into the Mainland in order to collect the dangerous drugs and bring them back across the border into Hong Kong.

64.  Third, as is now well-settled (see, for example, HKSAR v Lee Tak Kwan [1998] 2 HKC 371, per Mortimer VP at 378I) an increase in sentence will be justified when there is evidence of ‘importation’. In the present case, it was central to the conspiracy that the ketamine be obtained in the Mainland and imported into Hong Kong.

65.  In our judgment, taken together, these three aggravating features merited an increase of four years in the sentence to be imposed, but no more, the final sentence therefore being one of 20 years’ imprisonment.