HKSAR v. CHU PAK CHEONG

CACC476/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2005

(ON APPEAL FROM HCCC No. 132 OF 2005)

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REASONS  FOR  JUDGMENT

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Lunn J (giving the judgment of the Court) :

1. The appellant, who was unrepresented, applied for leave to appeal against his conviction on 11 November 2005, after trial before Deputy High Court Judge Toh and a jury, of two counts of unlawful trafficking in a dangerous drug.  At the hearing of the application leading counsel for the respondent, Mr Luk SC, conceded that there was a material non-direction by the judge in her summing-up in respect of evidence that had been led by the prosecution in cross-examination of the appellant of his “lifestyle” over a period of eight months, encompassing the eight day period in which the offences particularised in the two counts on the indictment were alleged to have occurred.  Treating the hearing of the application as the hearing of the appeal we allowed the appeal, quashed the convictions and ordered a re-trial of the appellant on both counts within about two months, the case being listed before a judge within 14 days for a date to be fixed.  We give our reasons now for allowing the appeal.

The prosecution case

2. Central to the prosecution case was the testimony of PC 2136, who had acted as an undercover officer in a police operation aimed at detecting the unlawful sale of dangerous drugs in the entertainment industry in Hong Kong and conducted between 5 December 2004 and 2 May 2005.  In the course of his duties PC 2136 met the appellant on 18 December 2004 and subsequently befriended him. 2005 PC 2136 testified that, whilst the two of them were together in the Aqua Base Bar in the early hours of 15 January 2005 after he had answered in the affirmative an inquiry by the appellant if he wanted some “Ice” to get high, the appellant had sold him a bag of “ Ice” for which he had paid $800 in marked banknotes.  That conduct was the subject of count 1 on the indictment.

3. PC 2136 said that on 19 January 2005 after the appellant had raised the matter with him he had agreed to purchase half an ounce of “Ice”.  On 21 January 2005 PC 2136 attended the appellant’s birthday party at the C Club.  There, having been given the telephone number of a person described by the appellant as Ah Hon whom he said he had arranged to supply the dangerous drugs, he called that number and agreed with the person to whom he spoke to buy half an ounce of “Ice”.  The appellant said that he would deliver the dangerous drugs later.  In the evening of 22 January 2005 they met at a restaurant at which the appellant supplied him with a bag of “Ice” for which he paid him $4,700 in marked banknotes.

4. Subsequent examination of the contents of the two bags revealed that they were “Ice”, that is methamphetamine hydrochloride, as particularised in the Particulars of Offence of two counts on the indictment.  The appellant was arrested on 15 February 2005.  However, no marked banknotes were recovered and no attempt was made to lift any fingerprints from the two bags of “ice”.  There were no other prosecution witnesses to the alleged acts of unlawful trafficking.

The defence case

5. The appellant gave evidence and, whilst he admitted having the meetings with PC 2136 as testified to by that officer, he denied that he had ever raised the subject of selling “Ice” to the police officer, let alone had he sold him two bags of “ice” or received money from him.  He said the subject of “Ice” had been raised but by the police officer, who had inquired of the appellant if he could obtain “Ice” for him.  The appellant testified that he had told the police officer that he had no idea how it could be obtained.  A witness, who was present together with the appellant at the Aqua Base Bar on the evening of 14 and in the early hours of 15 January 2005, was called on behalf of the defendant.  He said that he did not see the appellant giving the undercover police officer anything at all.

The issue for the jury

6. As the judge told the jury in her summing-up, the real issue that arose was simple : had the appellant sold two bags of ice to the police officer, the one on 15 and the other on 22 January 2005?

Grounds of appeal against conviction

7. On 16 November 2005, the appellant filed a Form XI, attached to which were his own homemade grounds of appeal in which he contended that there were “many doubts in the case.”  On 16 January 2006, his application for legal aid to apply for leave to appeal against his convictions was refused.

8. On the day before the hearing of the application for leave to appeal against conviction the court wrote to the parties and invited counsel for the respondent to assist the court in respect of the admissibility of the cross-examination of the appellant in respect of his allegedly extravagant “lifestyle” and the adequacy of the judge’s directions to the jury in that respect in her summing-up at pages 15E to 16E:

“Under cross-examination, the defendant admitted that he started working for Prime Credit at the end of December with a base salary of $5,500 and a commission.  He said that the commission he had earned for the months of December and January was four thousand to five thousand dollars.  He said he received remittances from his sister, who you will remember he said was also a student; she was a student at City College in San Francisco but she did work part-time.  We do not know what her work was but she was able to send him, on average, about two to three hundred US dollars per month.  The defendant said his other source of income was that, when he came to Hong Kong in June, he brought with him about US$2,000. 

It was shown to him from the record in his passport that he had travelled during the eight months he was in Hong Kong, from 3 June 2004 to 9 February 2005, that he had travelled to London twice and once to San Francisco, and he was asked how he could afford that.  He then said that the months between June and December, he actually did work part-time.  He said he moved things and also worked in construction and he was earning, on average, about four hundred to five hundred dollars a day.  He said his average earnings were about $5,000 from June to August 2004, per month, but he could not remember what he earned in September, October and November. 

It was put to him that his income could not support the lifestyle he led.  You will remember Miss Chan cross-examined him about what he did.  He was, when he went to London, on holiday.  When he went to San Francisco, it was merely to sign some documents for his admission to City College, and the last time he went to London, he was on holiday.  He said, after arriving at Heathrow, he lost his bankcard and he decided to change his stay and came back the following day, so he was only in London for a day.  So Miss Chan says it is clearly an indication of someone who is not just earning money from what he has told you.  It is a matter for you, members of the jury, whether you agree with Miss Chan’s submissions.  Miss Chan submits, therefore, that this casts doubt on the truthfulness of the defendant’s evidence.”

The admissibility of the evidence of the appellant’s lifestyle

9. Of obvious concern was the ambit of the cross-examination of the applicant as to his allegedly extravagant “lifestyle”, encompassing the period from 3 June 2004 to 9 February 2005, in light of the fact that the offences were alleged to have been committed in a period of only eight days in January 2005.  It appears that no objection to this evidence was made on behalf of the appellant.  In her summing-up, the judge describes the purpose of the cross-examination in a somewhat cryptic way(page 16C) : 

“So Miss Chan says it is clearly an indication of someone who is not just earning money from what he has told you.”

However, it is apparent from the audio-tape of proceedings that in cross-examination counsel made it clear to the jury what was being alleged in respect of the appellants regular trips outside Hong Kong, including two trips to London, one in June 2004, and one to San Francisco on 4 December 2004 :

“I put it to you that you are able to afford this sort of travelling and accommodation and entertainment expenses because you were selling drugs?”

10. Whilst the absence of objection by counsel for the appellant at his trial may have made more difficult the judge’s task in ensuring that only evidence relevant to the issues before the jury was admitted nevertheless, as Henry LJ noted in the judgment of the Court of Appeal of England and Wales in R. v. Gordon[ 1995] 2 Cr.App.R. 61 at 64C-D in considering the principles to be applied by the trial judge, in a case of possession of dangerous drugs with intent to supply, in determining the admissibility of evidence, including the possession of cash and an active current building society account of the appellant :

“4. Evidence of marginal relevance may and should be excluded if it would lead to a multiplicity of subsidiary issues.

5. It is the duty of the judge, whether objection is taken or not, to ensure that irrelevant evidence (particularly when it is prejudicial to the defence) be not received in court.  Should such evidence have been received, then the judge has the special responsibility to direct the jury either to disregard it or how to treat it, as the circumstances require.”

(Also, see Archbold Hong Kong 2005, chapter 29, paragraph 48.)

11. Given that the jury were concerned in this case with two acts of unlawful trafficking in a dangerous drugs in mid-January 2005 in Hong Kong the evidence of the appellant’s travel outside Hong Kong months earlier is irrelevant to the very simple issues with which the jury were concerned and inadmissible.  The prejudice is obvious : the jury were being invited to infer past acts of unlawful trafficking in dangerous drugs and to consider them relevant to the issues they had to decide.

12. Moreover, in any event, the judge failed to assist the jury at all as to how they were to approach this evidence other than in the context of the credibility of the appellant.  Having reviewed the evidence adduced from the appellant in cross-examination the judge then reminded the jury, in the way we have already set out, that's the prosecutor was saying this was:

“… clearly an indication of someone who is not just earning money from what he has told you.”

Then, she directed the jury :

“It is a matter for you, members of the jury whether you agree with Miss Chan’s submissions.  Miss Chan submits, therefore, that this casts doubt on the truthfulness of the defendant’s evidence.”

13. The need for the judge to have given directions to the jury of the approach to be taken to such part of the evidence about the appellant’s “lifestyle” that was admissible was adverted to in the judgment of the Court of Appeal of England and Wales in R. v. Morris [1995] 2 Cr.App.R. 69.  There, the appellant was convicted after trial of possession of dangerous drugs with intent to supply.  On her arrest she was found to be in possession of over £6,000 sterling in banknotes.  Of the need for the judge to give a direction to the jury of how they were to approach that evidence, Morland J in the judgment of the court said (page 76C-D) :

“If such evidence is admitted, it is incumbent on the judge to spell out to the jury what its probative significance can be while making it clear to the jury that it is for them decide whether it has or has not that probative significance.

The judge must then warn the jury that, if they reach the conclusion that the defendant is a drug dealer, this is not of itself either evidence of possession of drugs on a particular occasion or a basis for disbelieving a defendant.”

(Also, see R. v. Grant [1996] 1 Cr.App.R. 73 at 78C-F.)

14. Of the evidence of his “lifestyle” during the period of the alleged offences and shortly afterwards, including the evidence that the appellant travelled to London about two weeks after the alleged unlawful trafficking of 22 January 2005 and that he remained in London for only one day, the jury ought to have been directed in these or similar terms :

“Of itself it does not prove anything against the defendant and certainly not that he unlawfully trafficked in dangerous drugs.  But there are circumstances in which you may take this evidence into account when deciding whether he unlawfully trafficked in dangerous drugs as alleged in counts 1 and 2.  Before you can take this evidence into account you would have to be sure of a number of facts:

(i) that the defendant was living to a standard much higher than might be expected in all circumstances of the case;

(ii) that you can safely reject the explanation given by the defendant that his lifestyle at the time of the alleged acts of unlawful trafficking and shortly thereafter had nothing to do with his unlawful trafficking of dangerous drugs;

(iii) that there is no realistic possibility that the defendant’s lifestyle can be explained other than that he was unlawfully trafficking in dangerous drugs as alleged in the two counts on the indictment.”

15. As Mr Luk conceded eventually, the absence of such a direction was a material non-direction, in consequence of which we allowed the appellant’s application for leave to appeal against conviction, quashed the convictions and ordered a retrial in the terms set out in paragraph 1 above.

16. We wish to express our concern that in this case legal aid was refused in circumstances where it is clear that there existed good grounds of appeal against conviction.  The point was missed by all concerned at trial, by the respondent on the appeal and by those advising in respect of legal aid for the appeal.