HKSAR v. HUNG WAI YIP AND ANOTHER

CACC 51/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2011

(ON APPEAL FROM HCCC 20 OF 2010)

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BETWEEN

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Hon Lunn JA (giving the judgment and reasons for judgment of the court):

1.  The 1^st and 2^nd applicants were convicted after trial by Beeson J and a jury on 19 January 2011 of two counts (Counts 2 and 3) of unlawfully trafficking in a dangerous drug on 9 July 2009 at Room H, 16^th Floor, Block 3, Parkland Villas, 1 Tuen On Lane, Tuen Mun, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. Count 2 concerned 91.94 grammes of cocaine, whereas Count 3 concerned 685.59 grmmes of cocaine hydrochloride. Each of them was acquitted of manufacturing dangerous drugs (Count 1) at those premises on that date.

2.  The 1^st applicant, who was represented by Mr McGowan, applied for leave to appeal against his conviction on Count 3 and for the leave of the court to treat his abandonment of his application for leave to appeal against conviction in respect of Count 2 on the same indictment as a nullity.  The 2^nd applicant, who was represented by Mr Ross, applied for leave to appeal against his convictions in respect of Counts 2 and 3.

3.  At the hearing of the applications we refused the application of the 1^st applicant that his abandonment of his appeal in respect of Count 2 be treated as a nullity and dismissed his application for leave to appeal against conviction in respect of Count 3.  We said that we would give our reasons for so doing in due course.  That we do now.  We reserved judgment in respect of the application for leave to appeal against conviction of the 2^nd applicant.  We give our judgment in that matter now.

The 1^st applicant : Count 2 - abandoned appeal

4.  The 1^st applicant filed a Notice of Application for Leave to Appeal against Conviction by Form XI on 9 February 2011.  However, by a Notice of Abandonment dated 7 July 2011, couched in the language of Form VII of the Criminal Appeal Rules, Cap. 221, filed with the court on 8 July 2011 the applicant gave notice that he abandoned, “all further proceedings in regard of count 2”.

5.  By a letter to the applicant from the Registrar dated 8 July 2011 the 1^st applicant was informed that his application for leave to appeal against conviction in respect of Count 2 was dismissed.  That dismissal was pursuant to Rule 39 of the Criminal Appeal Rules, Cap. 221.

Evidence

The 1^st applicant

6.  In support of his application that the Notice of Abandonment be treated as a nullity the 1^st applicant filed an affirmation with the court dated 26 June 2012.  He accepted that he had signed the Notice of Abandonment dated 7 July 2011, which was in English, and instructions dated 21 June 2011, which were in Chinese characters.  In the latter, he confirmed acceptance of legal advice given to him in conference by counsel on 9 June 2011 that there were no grounds of appeal to advance in respect of Count 2 and that he had, “... decided to give up the application for appeal against conviction on the 2^nd charge.”

7.  In his oral evidence the 1^st applicant said that although he had been told the general nature of the Notice of Abandonment before he signed the document it has not been translated to him verbatim, in particular he had not been told that it contains the statement, “I abandon all proceedings in regard of Count 2 thereto”.  For his part, the 1^st applicant said that he did not know that in consequence of filing the Notice of Abandonment he could not re-open his application for leave to appeal in respect of Count 2.  In signing the Notice and having it filed with the court he had not intended that consequence.

8.  In his testimony the 1^st applicant confirmed the assertion in his affirmation that in that conference his counsel, Mr Suen Kam Hee, had told him that there were grounds of appeal against conviction in respect of Count 3 only and asserted that counsel had said that the applicant could wait to see the result of the appeal in respect of Count 3 and, “let me see, later, if appeal grounds could be put forward against the 2^nd charge.” He contended that he acceded to counsel’s suggestion for fear that counsel would not represent him at all if he did not do so.

9.  The 1^st applicant asserted that in a subsequent meeting with a clerk of the firm of solicitors he was given confirmation that what his barrister had told him was true, namely he should, “... wait for the results of the appeal against the 3^rd count and then discuss the other appeal later.”

Counsel and his instructing solicitors

10.  As directed by the court, the applicant’s counsel, Mr Suen Kam Hee, and his instructing solicitors filed affirmations in reply to the applicant’s affirmation.  In his affirmation, dated 23 July 2012, Mr Suen said that in a conference held with the 1^st applicant on 9 June 2011 attended by his solicitor’s representative, Mr Ho Tak Ming, the applicant indicated that he accepted counsel’s advice that there were no grounds for appeal to be advanced in respect of Count 2.  Mr Suen denied that he had ever told the 1^st applicant that he could wait for the results of the application for leave to appeal against conviction on Count 3 before deciding whether to advance grounds of appeal against conviction in respect of Count 2.

11.  Having received the applicant’s written confirmation of the acceptance of that advice, dated 21 June 2011, counsel drafted a Notice of Abandonment.  In due course, counsel was provided with the Notice of Abandonment dated 7 July 2011 signed by the applicant.

12.  Mr Suen said that in a conference with the applicant on 12 January 2012 he was informed that the applicant wished to instruct counsel privately.  That was the day listed for the hearing of the application of the 1^st applicant for leave to appeal against conviction.  As a result, Mr Suen withdrew from representing the applicant and the hearing was adjourned.

13.  In his affirmation dated 20 July 2012 Mr Ho Tak Ming, an assistant solicitor of Messrs Peter KH Wong & Co, confirmed not only that he had attended the conference with the applicant and counsel on 9 June 2011 but also that the applicant had accepted the advice of counsel that there were no arguable grounds to be advanced in support of an application for leave to appeal against the applicant’s conviction on Count 2.  Similarly, he said he had not advised, nor been present when anyone else advised, the applicant that he could await the results of his application for leave to appeal against conviction in respect of Count 3 before determining whether to proceed with the application in respect of Count 2.

14.  Mr Ho said that he held a conference with the 1^st applicant on 21 June 2011, when the applicant had signed his instructions confirming that, having accepted the advice to that effect, he had decided, “... to give up the application for appeal to CA against conviction on the 2^nd charge.”

Discussion

15.  We have no hesitation whatsoever in rejecting the testimony of the applicant that he was informed that, although he was abandoning his application for leave to appeal against conviction in respect of Count 2, nevertheless that application could be revived after the court had resolved the application in respect of Count 3.  We accept the evidence of Mr Suen and Mr Ho to the contrary.  First, the applicant’s account is that in effect he was given wholly incorrect advice.  Secondly, it is inherently improbable that experienced counsel, who was called to the Bar in 1977, would have given such fundamentally flawed advice.  Thirdly, it is clear that counsel and solicitors took careful steps to document what was a most important decision in the application for leave to appeal against conviction.  The instructions dated 21 June 2011 signed by the applicant are in Chinese characters.  The applicant signed immediately beneath the statement that he had “decided to give up the application for appeal…”.  That statement is unequivocal.  Finally, the final words of the Notice of Abandonment, taken from the words in Form VII, dated 7 July 2011 are equally unequivocal, namely : “I abandon all further proceedings in regard of count 2 thereto.”

16.  There is no dispute that the issue for this court is whether or not the applicant’s Notice of Abandonment was a nullity, namely [1] :

“ ... that the court is satisfied that the abandonment was not the result of a deliberate and informed decision, in other words the mind of the applicant did not go with his act of abandonment.”

17.  We are not so satisfied.  The 1^st applicant had failed to discharge the burden on him.  The applicant’s Notice of Abandonment was not a nullity and we refused his application.

THE TRIAL

18.  The 3 counts on the indictment averred that the 1^st and 2^nd applicants, together with Yuen Kin San, on or about 9 July 2009 unlawfully manufactured cocaine (Count 1) and on 9 July 2009 unlawfully trafficked respectively in 91.94 grammes of cocaine (Count 2) and in 685.59 grammes of cocaine hydrochloride (Count 3) at Room H, 16^th floor, Block 3, Parkland Villas, 1 Tuen On Lane, Tuen Mun.

The prosecution case

19.  There was no dispute that, after the applicants and Yuen Kin San were seen by police officers emerging from Room H, 16^th floor, Block 3, Parkland Villas at about 20:45 on 9 July 2009, they had been intercepted by police officers, who were waiting behind a fire door to the staircase which was immediately adjacent to the door to the premises.  It was the prosecution case that the three men had been on those premises at least since 20:30 that day.  A short struggle ensued between the police officers and the three men before the latter were subdued and required to squat down in the lift lobby area immediately outside the premises.  The 1^st applicant, who was the first of the three men to emerge from the premises, was found to be carrying a carrier bag, in which was found seven re-sealable packets of cocaine, the subject of Count 2.  Those packets were themselves wrapped up in a variety of wrappings.  The right palm print of the 1^st applicant was found on a piece of newspaper which had been used to wrap up one of the packets of cocaine.  Traces of cocaine were found beneath the 1^st applicant’s fingernails and on his hands.

20.  Having used a key found in the trouser pocket of the 2^nd applicant to gain entry to the wooden door to the premises, police officers found the cocaine hydrochloride, the subject of Count 3, and the paraphernalia and equipment for manufacturing dangerous drugs.  None of those items was found in the living room into which entry was made first of all through the wooden door.  The living room had no furniture whatsoever.

21.  The bedroom contained a foldable table and a television set, otherwise there was nothing in the way of furniture.  A bottle of Bonaqua water found on the table contained traces of human DNA, of which the 1^st applicant and Mr Yuen could have been donors.  Another bottle of water found on the same table contained traces of human DNA, of which the 2^nd applicant and Mr Yuen could have been donors.

22.  Empty bottles of bicarbonate of soda were found in the kitchen.  The undisputed expert evidence was that when mixed with cocaine and water and heated up an oily liquid forms on the surface of the water, which falls to the bottom of the container as lumps.  After those lumps are dried out in a microwave oven it presents in the form of crack cocaine.

23.  It was the prosecution case that the 1^st and 2^nd applicants had visited the premises on a number of occasions in the period on and between 3 and 9 July 2011 and that was evidenced by CCTV film adduced into evidence.  There was no dispute that the CCTV film was of only one of three lifts that served that floor of the premises, so that the prosecution conceded that the CCTV film did not constitute a definitive record of the comings and goings of the applicants.

24.  The prosecution adduced into evidence the responses of the applicants after they had been arrested and cautioned outside the premises and subsequently in video recorded interviews.  In response to being arrested and cautioned at the outset the 1^st applicant said, “Ah Sir, I have nothing to do with it.  I know nothing at all.”  The 2^nd applicant said “I only received $1,000 from someone for delivering the coke for him.  I know nothing else ….”  In their video recorded interviews the applicants gave explanations of how they came to be on the premises.  Each of them said that it was the first time that they had come to the premises and that they had been there only a short time prior to encountering the police.

25.  The prosecution did not accept that all of those answers were true.  In particular, the jury was invited to find to be untrue the 1^st and 2^nd applicants’ assertions that they had visited the flat that evening for the first time [2].

26.  The prosecution did not accept the 2^nd applicant’s explanation for his possession of keys to the premises, namely that he had borrowed them from Yuen Kin San in order to go to the toilet [3].

The defence case

27.  The applicants did not give or call evidence in their defence on the general issue at trial.  Rather, in part, each of them relied upon some of the answers that they had given in response to being cautioned when arrested and subsequently in video recorded interviews.

28.  In his video record of interview the 1^st applicant explained that he and the 2^nd applicant had gone to the premises in order to meet Yuen Kin San and go out together for a meal.  He drove there and, having parked his car in a carpark nearby, had been in the premises for no more than 20 minutes.  He and the 2^nd applicant sat in the living room, whilst Mr Yuen had gone into another room.  He did not go into or look into any of the other rooms.  He did not know what was in the other rooms.

29.  The 1^st applicant explained his possession of the carrier bag, in which the cocaine the subject of Count 2 was found, on the basis that at the time that Yuen Kin San provided the 2^nd applicant with a set of keys to the premises, in response to his request to go to the toilet, and in doing so Yuen Kin San had handed him the carrier bag to hold [4]. He held the bag but did not look into or examine its contents.  He did not know what it contained [5].

30.  In his closing speech, counsel for the 1^st applicant invited the jury to note that there was no evidence of the presence of the 1^st applicant’s DNA or fingerprints on any of the paraphernalia of manufacture (Count 1) or the dangerous drugs found inside the premises (Count 3).

31.  In his record of interview, the 2^nd applicant said that he had been in the premises for about 10 minutes and had only been in the living room and the toilet.  He did not know anything of the presence in other parts of the premises of the equipment for manufacturing dangerous drugs or the dangerous drugs themselves.  He had gone to the premises at Yuen Kin San’s request.  It was suggested to the jury on behalf of the 2^nd applicant that his initial response to being arrested and cautioned, namely, “I only received $1000 from someone for delivering the coke for him/her.  I know nothing else” was explained by his answer in his video recorded interview that he gone to the premises to find out what kind of coke it was and, having found that it was dangerous drugs, he had “immediately left” [6].

32.  Similarly, reliance was placed on the 2^nd applicant’s explanation for his possession of keys to the premises at the time that he was intercepted by police officers, namely that he had borrowed keys from Yuen Kin San in order to go to the toilet [7]. Further, reliance was placed on his assertion that he did not know what was contained in the bag in which was found the cocaine the subject of Count 2 [8].

GROUNDS OF APPEAL AGAINST CONVICTION

1^st Applicant

Counts 2 and 3 : ‘No case to answer’/insufficient evidential link

33.  Mr McGowan submitted that the judge erred in rejecting a submission of ‘no case to answer’ made on behalf of the 1^st applicant in respect of Count 3.  He suggested that although there was undisputed evidence that the 1^st applicant had been on the premises for a period of some minutes prior to emerging from the door to the premises together with the 2^nd applicant and Mr Yuen, there was insufficient evidence to establish that the applicant unlawfully trafficked in the cocaine hydrochloride, the subject of Count 3, which had been found in the bedroom and kitchen but not in the living room of the premises.

Counts 1 and 3 : inconsistent verdicts

34.  Next, it was submitted that the verdict of the jury acquitting the 1^st applicant in respect of Count 1, manufacturing dangerous drugs, was inconsistent with their verdict convicting the 1^st applicant of Count 3, unlawfully trafficking in the dangerous drugs found in the premises.

‘Flagrant incompetence’ of trial counsel

(i)  The failure to adduce into evidence the out-of-court statements of Mr Yuen that were exculpatory of the 1^st applicant

35.  Then, Mr McGowan submitted that counsel representing the 1^st applicant at trial, Mr Niall Stirling, had been flagrantly incompetent in his conduct of the 1^st applicant’s defence in failing to adduce into evidence before the jury of the fact that Mr Yuen had made out-of-court statements to the police in a video recorded interview which exonerated the 1^st applicant of any knowledge of the presence of dangerous drugs in the premises let alone participation in unlawfully trafficking in those dangerous drugs.  Further, Mr Yuen gave an explanation as to how it came about that the 1^st applicant was in possession of the carrier bag in which was found the dangerous drugs the subject of Count 2, namely that he had asked him to hold the bag whilst he took out his keys to the premises to give to the 2^nd applicant.

(ii)   The failure to challenge the admissibility of the 1^st applicant’s out-of-court statements

36.  Next, it was contended that counsel at trial was flagrantly incompetent in not challenging the admissibility of the out-of-court statements made by the 1^st applicant to the police, notwithstanding that he had instructions from the 1^st applicant that provided a proper basis for challenging the admissibility of those out-of-court statements.  Although it was accepted that in those out-of-court statements the applicant had not made any admissions of unlawful trafficking, nevertheless he had asserted that the visit to the premises on the evening of 9 July 2009 was his first visit to the premises.  Importantly, the jury had been invited to treat that assertion as a lie.

(iii) The failure to cross-examine witnesses properly and adduce all relevant evidence

37.  It was contended that the flagrant incompetence of trial counsel extended to his failure to establish in cross-examination of witnesses that there were three lifts by which access might be obtained to the premises and that the CCTV film adduced in evidence related to only one of those lifts.  Furthermore, counsel had not canvassed with the prosecution witnesses the possibility that the evidence of the 1^st applicant’s contact with cocaine came about because of contamination between the 1^st applicant and police officers and that the presence of the 1^st applicant’s DNA on a water bottle came about because PC 34311 had handed him the bottle from which to drink [9]. Then, it was suggested that trial counsel had erred in not adducing into evidence a parking ticket which, it was said, established that the 1^st applicant could only have been in the premises for a few minutes before he emerged and was arrested.

(iv)   The advice to the 1^st applicant not to give evidence 

38.  Finally, it was submitted that trial counsel had given the 1^st applicant flagrantly incompetent advice in advising him not to give evidence at trial.  Given the undisputed evidence that the applicant had been found holding a carrier bag in which seven packets of cocaine were found and that his fingerprint was found on one of the newspapers used to wrap one of the packets, his DNA discerned on a bottle of water found in the premises and the evidence of his visits to the premises on various days immediately before his arrest that advice was “plainly wrong”.

Evidence

39.  In support of the submission of the alleged incompetence of trial counsel, the applicant filed two affirmations with the court, on 25 June and 27 June 2012 respectively.  In addition, his elder sister, Madam Hung Ching Yee, filed an affirmation on 8 February 2013.

The 2^nd applicant

The judge’s refusal to allow the 2^nd applicant to adduce evidence from a witness in the voir dire

40.  It was submitted on behalf the 2^nd applicant that, in determining in a voir dire that the out-of-court statements of the 2^nd applicant were admissible in evidence, the judge erred in ruling inadmissible the evidence of a prospective witness to be called on behalf of the 2^nd applicant in the voir dire, Wong Tsz Him, and in declining to amend that ruling after receiving further submissions immediately before the jury was empanelled [10]. It was asserted that the witness would have testified to violence meted out by two of the police officers called on behalf of the prosecution in the voir dire on the occasion of another raid in another case entirely, conducted some seven weeks later, on other premises in the course of their enquiries into other unlawful drug trafficking.  It was contended that evidence showed that those officers had a propensity for violence when conducting such raids.

The acts of the 2^nd applicant relevant to unlawful trafficking

41.  Then, it was submitted that the judge erred in directing the jury, “Were they in it together?  Can you draw the inference that they were all acting together in relation to the manufacturing and the trafficking? [11]” It was submitted that the judge’s direction was wrong and may have led the jury to conclude that they were permitted to return verdicts of guilty in respect of those charges, albeit that they were unable to determine what particular assistance was rendered by the 2^nd applicant, in particular in respect of Count 2, unlawful trafficking in dangerous drugs.

42.  It was contended that direction to the jury was compounded by her subsequent direction in respect of proof of the requisite actus reus in the offence of manufacturing dangerous drugs [12] :

“ It was submitted by Mr Stirling that you would have to know in what manner the defendants were participating in the manufacturing before you can find them guilty of manufacturing, but that states the matter too strongly. As a matter of law, you would have to be sure that on the date the time in the charge and at the place of the charge that one or both of the accused knew that the manufacturing was going on at Flat H and that they assisted in some way in that manufacturing, even if you cannot specify the precise activity, whether it be drying or crushing or reducing the lumps to powder or packaging, or a combination of those activities.”

Counts 1 and 3 : inconsistent verdicts

43.  Finally, it was submitted that the 2^nd applicant’s acquittal on Count 1 (manufacturing) was inconsistent with his conviction of unlawfully trafficking in the dangerous drugs found on the same premises (Count 3).

A CONSIDERATION OF THE SUBMISSIONS

The 1^st applicant

The alleged flagrant incompetence of counsel

44.  It is to be noted that, although the 1^st applicant was represented by solicitors, Messrs Peter K H Wong & Co, and counsel, Mr Suen Kam Hee, following his convictions on 19 January 2011, it was not until the 1^st applicant filed an affirmation with the court on 25 June 2012 that the court and the respondent were informed that it was alleged that he had been represented incompetently at trial.  Indeed, the 1^st applicant did not dispense with the services of those solicitors and counsel until 12 January 2012, the day on which his application for leave to appeal against conviction was to be heard.  One consequence of the delay in the 1^st applicant articulating his allegations is that trial counsel and solicitors were first asked to consider and address the allegations was more than 18 months after the events in question.

Evidence

The 1^st applicant

45.  The 1^st applicant’s affirmation on 25 June 2012 exhibited a series of his written instructions for the conduct of his trial dated 21 June, 27 October and 31 December 2010, together with an undated set of instructions which he said he thought he had given on 31 December 2010.

Counsel and his solicitors

46.  At the request of the court, counsel for the 1^st applicant at trial and his instructing solicitors filed affirmations addressing the allegations made by the 1^st applicant. Counsel, Mr Niall Stirling, filed affirmations dated 23 and 26 July 2012, whereas his instructing solicitor Mr Wong Kit Hin Peter and a solicitor in the firm, Mr HoTak Ming, each filed affirmations on 23 July 2012.  At the request of the court, Mr Stirling and Mr Ho gave oral testimony.

47.  Mr Stirling testified that he had returned all the papers to the Legal Aid Department after the trial.  He had drafted his two affirmations, and had them notarised in Scotland, from his memory having seen only the material that had been filed by the 1^st applicant as exhibits.  In his affirmation he said that, as best he could recall, it was probable that he advised the applicant that his “defence was substantially contained in the record of interview”.  Similarly, it was probable that he advised that it was “unlikely that a jury would believe he was beaten up to force a denial from him”.  Further, that the record of interview could support a submission of ‘no case to answer’ [13].

48.  Mr Stirling testified that the 1^st applicant had acknowledged to his lawyers that his assertion in the record of interview that his presence at the premises on 9 July 2009 was the first time that he had visited the premises was a lie.  The 1^st applicant explained that he had lied because, having learnt that the equipment for manufacturing dangerous drugs was present in the premises, he wished to disassociate himself from those premises.  The 1^st applicant took no issue with the fact that he had visited the premises on earlier occasions, as was evidenced by the CCTV film.  In those circumstances, counsel said that he had advised the 1^st applicant of the direction that the judge was required to give the jury in respect of ‘lies’ and concluded with the advice that he should not give evidence since there was nothing to be gained from giving evidence and being subjected to cross-examination [14].

49.  It is to be noted that the 1^st applicant accepted that, following advice from counsel, he signed instructions [15] in which he acknowledged that he had been advised that he had the “absolute right to give evidence in court, and right to call witnesses”, and that he had been advised of the “pros and cons of giving evidence”.  In the result, the applicant stated that he had decided, “I do not give evidence in court and not call for witnesses.”  Mr Stirling explained in his testimony that he had stressed to the 1^st applicant that the decision whether or not to give or call evidence was that of the 1^st applicant.

50.  There was no dispute that Mr Yuen had pleaded guilty to the two counts of unlawfully trafficking in dangerous drugs with which he had been indicted jointly with the applicants.  Indeed, the jury was informed of that fact in the opening speech of counsel for the prosecution [16]. In his affirmation sworn on 23 July 2012 Mr Stirling said that he was unable to remember any discussion with his instructing solicitors regarding calling Mr Yuen as a witness in the defence case or if steps were taken to find out if he was willing to be a witness.  However, in his oral testimony he said that he would have advised that experience showed that calling a co-defendant can ‘backfire’, in particular that such a witness could be a “loose cannon on deck”.  Such a witness might be called to give evidence if there was no other evidence, but here the core of the defence was set out in the record of interview.  In cross-examination, he agreed that it would have been helpful to have had Mr Yuen interviewed, so that it was known what he would say, but he added that he proceeded on the basis that it was likely that he would say what he had said in his record of interview.

51.  Further, Mr Stirling said that he was of the view that the statements made by Mr Yuen, “... outwith the presence of the applicant was not evidence of the truth of those statements” [17].

52.  In his affirmation, Mr Peter Wong said that the issue of whether or not to call Mr Yuen as a witness had been discussed with the 1^st applicant.  He said that the 1^st applicant had accepted counsel’s advice not to call Mr Yuen.  That is what led to the applicant signing the instructions dated 17 January 2011, namely where he acknowledged that he had decided not to give or call evidence [18].

53.  In his oral testimony, Mr Ho confirmed that the question of whether or not to call Mr Yuen in the defence case was discussed with the 1^st applicant.  In cross-examination, he agreed that initially the 1^st applicant had said that he wished to call Mr Yuen.  However, Mr Ho said that after the 1^st applicant had received counsel’s advice he did not persist with that request.

54.  There was no dispute at trial that, following their arrest, the applicants had been brought back inside the premises to witness the search of those premises.  The evidence of prosecution witnesses [19] was that, in order to prevent contamination with dangerous drugs inside the premises, their clothing had been removed and they have been provided with other clothing.  Then, their hands had been placed in paper bags before the applicants were brought back inside the premises.  There was no dispute that whilst inside the premises the 1^st applicant had squatted down.  In cross-examination of DPC 34311, it was not suggested on behalf of the 1^st applicant that the police officer had handed the applicant a water bottle from which to drink whilst in the premises.

55.  In his closing speech to the jury, Mr Stirling addressed the prosecution evidence that traces of cocaine had been found on the 1^st applicant’s hands and in cuttings taken from beneath his fingernails and the fact that his palm print had been found on the newspaper in which one of the packets of cocaine, found in the carrier bag held by the 1^st applicant, had been wrapped.  Of the former, he noted that it was undisputed that the 1^st applicant had been to the premises on “many occasions” in the days prior to his arrest.  He suggested to the jury that “the whole flat would be contaminated with traces of cocaine and anybody touching anything in the flat may well end up with traces of cocaine”.  Of the latter, he invited the jury to have regard to the fact that the newspaper was of course a movable item which, if picked up to read, might well leave a palm print [20]. Also, counsel dealt with what he called the “inconclusive” evidence of the discovery of DNA that could not be excluded as having come from the applicant on a water bottle found on the premises, inviting the jury to note that even if it was the DNA of the 1^st applicant, it was on a movable object which the applicant could have touched elsewhere in the flat, at an earlier stage.

56.  There was never an issue that the CCTV film produced into evidence depicted one only of the three lifts that served the 16^th floor.  That much was made clear by counsel for the prosecution in examination-in-chief of DSPC 503 [21]. It was an admitted fact that the CCTV film came from lift 7 [22]. Photograph 7 of exhibit P 135 depicts lift 7 as one of the three lifts.

57.  The prosecution case was that the police team was not in place on the rear staircase of the 16^th floor, from which they could monitor movements in and out of the premises, until 20:30 on 9 July 2009 [23]. Accordingly, those witnesses could only speak to movements in and out of the premises from that time onwards.  That evidence was consistent with the account given by the 1^st applicant in his record of interview that he had arrived at Parkland Villas and parked his car at “around eight o’clock” [24]. Further, that he had been on the premises for not more than 20 minutes before he left and was intercepted by the police.  The parking ticket issued to the 1^st applicant, which he had provided to his solicitors but which had not been adduced in evidence, merely went to substantiate a matter that was not in issue.

THE LAW

58.  In the judgment of Sir Thomas Eichelbaum NPJ, with whom all the other judges in the Court of Final Appeal agreed in Chong Ching Yuen v HKSAR [25]the issue of the circumstances in which the right of the defendant to a fair trial was jeopardised by the flagrant incompetence of his counsel at trial was addressed.  A passage from the judgment of Gleeson CJ, as he was then, in the Court of Appeal of New South Wales in R v Birks [26] was cited with approval :

“ ‘In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate :

‘ … His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.’ ”

59.  Sir Thomas Eichelbaum went on to observe :

“ 48. It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.

49. Nevertheless the courts have recognized that in some exceptional instances, an error of sufficient proportion and consequence will enable the court to intervene and avert a miscarriage of justice. To describe this ground, the expression “flagrant incompetence” has generally been used, see for example R v. Mo Lee-kuen [1993] 1 HKCLR 78; HKSAR v. Wong Chi-keung & Others, Cr App No. 585 of 1996, 3 July 1998; R v. Lau Sui Fu [1997] HKLRD 323; HKSAR v. Au Yeung Long & Another, CACC No. 522 of 1998, 11 June 1999. While the term is firmly embedded in case law in Hong Kong, and in some jurisdictions overseas as well, it is more a convenient form of shorthand than anything like a comprehensive description of the foundation for a successful appeal. Indeed, at least at first impression the reference to incompetence may suggest an issue about the general competence of counsel, which usually is not in issue at all, and was not in issue here. Occasionally, in extreme cases, an appeal may turn on counsel’s conduct of the trial as a whole, for example a failure to conduct the case in accordance with any theory of a defence case where a clear line of defence is available. More often however assertions of “incompetence” will relate to the manner in which counsel dealt with a specific issue during trial, involving a matter of judgment or decision, or advice given to the defendant. The expression “flagrant incompetence” rightly underlines an appellant’s need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial. As Lord Steyn said, in delivering the judgment of the Privy Council in Boodram v. The State [2002] 1 Cr App R 103 :

‘ …the general principle requires the court to focus on the impact of the faulty conduct.’ (at p.118)

The bottom line is that to succeed, an appellant may show he or she received less than a fair trial.”

60.  Whilst it is true that counsel for the 1^st applicant did not put the applicant’s instructions in terms to DPC 34311 in cross-examination, namely that he had handed the applicant a water bottle from which to drink whilst the latter was in the premises following his arrest, as noted earlier, in his closing speech he did deal with the issue of the possibility that the 1^st applicant was the donor of human DNA detected on a water bottle found on the premises.  He reminded the jury, [27] “nobody can say when, where or how” the applicant might have come into contact with the bottle.  Obviously, the point he made was of some substance, given that there was no dispute that the 1^st applicant had visited the premises on a number of occasions in the days prior to 9 July 2009 and that the water bottle was a readily movable object.  Little specific weight could be attached to the fact that on 9 July 2009 it was found by police officers in the bedroom, in which the dangerous drugs were found openly displayed.  Counsel made a similar point in respect of the presence of the applicant’s palm print on a newspaper in which one of the seven packets of cocaine found in a carrier bag had been wrapped [28].  He dealt with the issue of the traces of cocaine found on the applicant’s hands underneath his fingernails on the basis that the trace amounts of cocaine found on the applicant’s person could have been left there by contact with almost anything in the premises.

61.  Although the applicant did not contest the fact that he had been to the premises on a number of occasions, prior to the evening on which he had been apprehended as he left the premises, the advice of counsel not to challenge the admissibility of the largely exculpatory account given by the 1^st applicant in his record of interview was entirely understandable.  Whilst the record of interview contained the undisputed lie of the 1^st applicant that 9 July 2009 was his first visit to the premises, nevertheless on being introduced into evidence it put before the jury the core of his defence without exposing him to the dangers of cross-examination.  Further, there was obvious common sense in counsel’s advice to the 1^st applicant that the jury were unlikely to accept that the applicant had been forced into making what was, in effect, a denial of any culpability.  We are satisfied that the advice and the decision that was reached were given and made in what counsel considered to be the best interests of the 1^st applicant and was entirely sensible.

62.  It is not known if Mr Yuen was willing to give evidence in the defence case of the 1^st applicant. However, it is clear that if he was to be called to give evidence it would have been on the basis that his evidence was either identical to or broadly similar to the assertions that he had made in his own video recorded interviews with the police, in particular that the applicants knew nothing of the presence in the premises of cocaine and equipment capable of being used for the manufacture of dangerous drugs.  Obviously, if Mr Yuen was called as a witness he was vulnerable to cross-examination.  As the judge pointed out in her summing up [29] :

“ The CCTV footage shows it was not the first time that the 1^st and 2^nd defendants had been to the flat, despite what they said in their statements and from 3 to 9 July they had been there on a number of occasions.

While it is not possible to say how many visits they made during that time or how long they spent on each visit, you can look at the condition of the flat on 9 July and you can draw an inference that the conversion process was being carried out and/or the preparation and packing was being done. The flat was not a residence, and given the amount of dangerous drugs and equipment found there, it is difficult to see how regular visitors could not have seen the contents of the kitchen and bedroom or not have known what was going on in those premises.

Although it might be suggested that the accused could have been visiting the flat while Yuen and perhaps other people were in the flat during the manufacturing, you would ask yourself whether it’s likely that manufacturing will be carried out in the presence of people not connected with the operation.”

63.  As Mr Stirling anticipated and advised the 1^st applicant, the judge did give the jury the standard direction in respect of ‘Lies’ in the Judicial Studies Board’s Specimen Directions [30].  Furthermore, that was a matter that Mr Stirling addressed in his closing speech, inviting the jury to consider the fact that at time of the record of interview the 1^st applicant knew of the presence inside the premises of the dangerous drugs and equipment capable of being used to manufacture dangerous drug and suggested of the 1^st applicant’s lie that, albeit that it was “stupid but understandable” in that the 1^st applicant was merely trying to dissociate himself from those suspicious circumstances [31].

The failure to cross-examine a prosecution witness to adduce into evidence the out-of-court statements of Yuen Kin San

64.  Albeit that applicants were jointly charged in all three offences with Yuen Kin San, having pleaded guilty on arraignment to Counts 2 and 3, in consequence of which Count 1 was ordered to lie on the court file, Yuen Kin San was a competent and compellable witness at the behest of the 1^st applicant. In oral argument, Mr McGowan accepted as much.  Nevertheless, he persisted in his submission that cross-examination of the police officer, DPC 48852, to elicit evidence of the statements made by Yuen Kin San in the record of interview, was permissible in that the evidence was admissible.  Further, it was contended that Mr Stirling’s failure to adduce that evidence in cross-examination of DPC 48852, who was called as a witness by the prosecution in the trial, amounted to a flagrant incompetence in the conduct of the 1^st applicant’s defence.

65.  In support of his contention Mr McGowan relied on the ruling of Deputy Judge McMahon, as he was then, in the course of a trial in the Court of First Instance in HKSAR v Au Yuen Mei [32].  In that case, after apprehension by the police, the applicant’s husband had asserted that dangerous drugs found in the matrimonial home had nothing to do with his wife and that he had forced her to carry dangerous drugs found on her person.  At one stage, husband and wife had been jointly charged.  However, subsequently the husband was dealt with separately and the wife stood trial by herself before Deputy Judge McMahon.  At issue, was whether or not cross-examination of the police officer to whom the statements were made by the husband was admissible as evidence of the truth of those statements.

66.  Deputy Judge McMahon acknowledged that the evidence was “plainly hearsay” [33]. Having referred to the judgment of the House of Lords in R v Myers [34], he said that he took from the judgments the proposition :

“ that once a defendant is a co-defendant in a trial, then procedural chance as to whether or not he, in fact, gives evidence should not determine whether a court allows cross-examination to take place as to what he had said as an admission on a prior occasion.”

67.  The judge acknowledged that in the circumstances of the case before him [35] :

“... it may be that I am going somewhat beyond the law as it exists and is set out in Myers case, I do so in agreement with the Law Commission Consultation Paper on Evidence in Criminal Proceedings, Hearsay and Related Topics. It says :

‘ the fact that someone else has confessed to the offence is logically relevant to the issue of whether the defendant committed it or not. This is so whether the person is a co-defendant who gives evidence, a co-defendant who exercises his right not to give evidence, a co-defendant who is tried separately or a person who has never caught or is never prosecuted.’ ” [36]

68.  Mr McGowan acknowledged that in a subsequent ruling in another trial in the Court of First Instance, HKSAR v Mohamedajoeb [37], Wright J had declined to permit cross-examination of a police officer, in which it was sought to adduce evidence of out-of-court statements made by a co-defendant, who had been jointly charged with a single count of unlawfully trafficking in dangerous drugs.  The statements were made by the husband of one of the two defendants on trial before Wright J, and were exculpatory of his wife.  On arraignment the husband pleaded guilty.  Mr McGowan sought to distinguish that ruling on the basis that the assertions in question were made in a non-prejudicial statement made by the husband.

69.  In his ruling, Wright J said [38] :

“ The effect of his plea is that he is presently a competent and compellable witness at the instance of the second accused. This is so by virtue of the provisions of s. 57(1) and 57(2) as read with s. 57(5) and 57(6) of the criminal procedure ordinance (Cap. 221).

Consequently, the procedural chance contemplated in HKSAR v Au Yuen Mei (No 2) does not arise in the present matter : whether or not to call the first accused lies fully in the hands of the second accused.  There is thus neither unfairness nor injustice occasioned to the second accused by disallowing cross-examination.”

70.  It is clear from the judgments in Myers, as Wright J noted [39], that the underlying rationale for allowing the cross-examination of a person to whom an out-of-court admission had been made was that the maker of the admission was not a compellable witness at the behest of a co-defendant in a trial.  It was that circumstance that led to the unfairness to the defendant.  In his judgment in Myers, Lord Hope said [40] :

“ The statements which counsel for the appellant’s co-defendant was allowed to lead in evidence from the police witnesses were statements by his co-defendant, not by a person who could properly be described as a third party because he was not party to the trial. There was no other way of eliciting this evidence because the maker of the statement was not a compellable witness for the co-defendant.” [Italics added.]

71.  Here, Yuen Kin San was a compellable witness, who was available to be called as a witness.  It was a matter for the 1^st applicant to determine whether or not to call him to give evidence.  He considered that matter with his lawyers and decided not to do so.  It was not permissible to seek to avoid the risks of cross-examination of Yuen Kin San by seeking to elicit his exculpatory out-of-court statements by cross-examination of the police officer.  That evidence was hearsay and was not the subject of any exception to that rule.  The only purpose of cross-examining the police officer in respect of Yuen Kin San’s out-of-court statement was to adduce it as evidence of the truth.  It was inadmissible for that purpose.  The view taken at trial of the issue by Mr Stirling was correct.

Conclusion

72.  We are entirely satisfied that the various decisions made by Mr Stirling as to how to conduct the 1^st applicant’s case in the trial fell squarely within the ambit of his professional judgment as to how the proceeding should be conducted.  Equally obviously, it is clear that the 1^st applicant was consulted by counsel and instructing solicitors throughout the trial and agreed to the manner in which counsel conducted the trial.  There is no merit whatsoever in this ground of appeal.  It ought not to have been advanced.

No case to answer

73.  As was conceded by Mr William Tam for the respondent, there was no direct evidence that the 1^st applicant unlawfully trafficked in the cocaine hydrochloride found inside the premises.  However, there was a considerable volume of powerful circumstantial evidence.  The 1^st applicant had been intercepted, as he emerged from those premises together with the 2^nd applicant and Mr Yuen, and found to be in possession of a carrier bag containing seven re-sealable packets of a total of over 90 grammes of cocaine.  The premises were almost entirely bereft of any furnishings.  The paraphernalia and equipment for the manufacture of dangerous drugs were strewn around in the kitchen and bedroom, together with cocaine hydrochloride much of which was displayed openly on newspapers on the floor in the bedroom.  The premises were clearly not being used as a residential flat.  Rather, they were being used to manufacture and store dangerous drugs.  What possible purpose could the 1^st applicant have had in coming to those premises repeatedly on days before and on 9 July 2009, other than as part of his joint control and possession of the dangerous drugs for the purposes of unlawfully trafficking?  Relevant to those issues was the fact that the 1^st applicant had lied that the evening of 9 July 2009 was his first visit to the premises.

74.  Although the 1^st applicant said that he had been present in the living room on 9 July 2009 for about 20 minutes so, he said that all he had done was sit down, smoke a cigarette and chatted with the 2^nd applicant.  He acknowledged that there was nothing in that room.  Mr Yuen left the two of them in the living room to go elsewhere to deal with his “stuff”.  For his part, he had not been elsewhere in the premises.

75.  There is no dispute that in those circumstances, where the weight to be attached to primary evidence or the inferences to be drawn from such evidence is a matter for the jury that the correct approach in considering a submission of no case to answer is as set out in the judgment of this Court by Kempster JA in AG v Li Fook Shiu, Ronald [41] :

“ (2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn on all the elements of the prosecution case are to be established?  If he concludes that the jury court may so be satisfied, he will rule against the submission or application.”

76.  We are satisfied that the judge was correct in ruling that there was a case to answer in respect of Count 3.

Counts 1 and 3 : inconsistent verdicts

77.  The elements of the offence of manufacturing a dangerous drug are quite different from those of unlawfully trafficking in a dangerous drug.  As the judge told the jury correctly [42]:

“ To manufacture a dangerous drug means any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug.”

78.  By contrast, the judge directed the jury, in light of the evidence in this case, that trafficking in a dangerous drug, “means supplying it to others, or selling it, or exporting or importing it, procuring it, or possessing it for such a purpose.”  Of the requisite element of possession, the judge directed the jury [43] :

“ An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product from one place so that any of them may go there and move or take some of the articles as and when they see fit, then all are in control of the product in the sense that I have described control, and all are in possession of it.”

79.  Highly relevant to the issue of unlawfully trafficking in the dangerous drugs in Count 3 was the fact that the 1^st applicant was apprehended emerging from the premises holding a carrier bag in which was the cocaine the subject of Count 2. By contrast, as counsel for the 1^st applicant suggested to the jury, there was no evidence of contact by the 1^st applicant with any of the equipment or paraphernalia capable of being used in the manufacture of dangerous drugs.  Although it was known that the 1^st applicant had visited the premises on a number of occasions in the days leading up to and including 9 July 2009 there was no evidence as to how long he had been on the premises, other than on the evening of 9 July 2009.  The fact that the jury must have determined that there was insufficient evidence to be sure that the applicant had participated or assisted in any of the acts of which manufacturing is constituted did not impact in a determinative way on their consideration of whether or not he unlawfully trafficked in the dangerous drugs in the premises.

Loss of Time

80.  The allegations of incompetence were entirely unmeritorious. In answers to questions from the court, counsel and solicitors told us of the amount of work, the many hours, which each had to commit to the issue.  Mr Wong, who was on the periphery of the case, estimated 15 hours; counsel would have had to dedicate much more than that.  And, that ignores the stress that allegations of this kind occasion.  We will hear counsel as to why an order should not be made for loss of time, pursuant to section 83 W of the Criminal Procedure Ordinance, Cap.  221.

The 2^nd applicant

The judge’s ruling refusing to receive the evidence of a witness in the voir dire

81.  In the written objections to the admissibility of the out-of-court statements said to have been made by the 2^nd applicant to the police it was alleged that the 2^nd applicant had been subjected to physical violence and threats.  Inside the premises he was kicked and hit on the head.  His head was covered with a hood in such a way that he could not see.

82.  In his evidence in the voir dire the 2^nd applicant testified that he had been kicked by DPC 50049 and DPC 34311.  Also, he said that the former officer had hit him on the head and placed a hood over his head which he manoeuvred so that he was unable to see through the eyeholes [44].

83.  In cross-examination in the voir dire by Mr Philip Ross, on behalf of the 2^nd applicant, Detective Senior Inspector Chan Kwong Ming confirmed that he and other officers had conducted a police operation on 26 August 2009 at 45, Ma Tin Tsuen [45].  He identified himself and other police officers in a photograph published in a newspaper apparently taken of those officers during the operation.  The officer denied that he had used or seen violence being used during that operation.

84.  In the course of an interchange with the judge, Mr Ross sought to justify the relevance of cross-examination in respect of the subsequent police operation involving the officer on the basis that it showed “the propensity of the team members to be rough” [46].

85.  Subsequently in the voir dire, DPC 54856 confirmed, in answer to questions from Mr Ross, that he was a member of the police team involved in the operation of 26 August 2009.  He denied having seen any violence being used or having seen a blanket placed over any person’s head [47].

86.  At the conclusion of the evidence of the 2^nd applicant in the voir dire Mr Ross sought to call Wong Tsz Him as a witness, informing the court that he was an occupant of the premises the subject of the police operation on 26 August 2009. Counsel for the prosecution objected to the proposed evidence on the basis that it went to “an entirely collateral matter”.  Mr Ross drew the attention of the judge to a passage in paragraph 37 of the judgment of this court in HKSAR v So Kam Tong [48], which he said supported the prosecution.  Then, he submitted that the prospective evidence fell within one of the exceptions to the rule relating to the finality of answers to questions in cross-examination as to collateral matters.  He suggested that the exception was that of ‘bad character’ and indicated to the court that the anticipated evidence would go to the “propensity of this team to commit (a) similar kind of raid with accompanying violence as they did in this case” [49].

87.  In the result, the judge ruled, “I don’t see that this is relevant evidence or by other evidence, and I am not allowing this witness to be called.” [50]  Shortly thereafter, having received a brief submission from Mr Ross, the judge ruled that the out-of-court statements made by the 2^nd applicant admissible in evidence before the jury.

88.  Immediately before the jury was to be empanelled, Mr Ross applied to the judge that she re-visit her ruling in the voir dire.  In the course of his submissions Mr Ross drew the attention of the judge to various authorities in other jurisdictions : R v Polley [51](Court of Criminal Appeal, South Australia); R v Harmer [52] (Court of Criminal Appeal, Victoria); R v Anderson [53](Supreme Court, Northern Territory); and R v Malik [54] (Court of Appeal, England and Wales).  He submitted those cases were authority for the proposition that the prospective evidence of Wong Tsz Him was admissible as going to the ‘bad character’ of DSIP Chan and DPC 54856.

89.  The judge declined to re-open the voir dire or amend her ruling, stating :

“ The court is effectively being asked deal with a second case through the medium of allegations made in respect of a case seven weeks after this one. I can’t see how that’s justified or, indeed, possible.”

90.  It is to be noted that at no stage of the trial was the judge provided with a witness statement of the prospective evidence of Wong Tsz Hin.  All that the judge was told was that the witness was expected to give evidence relevant to two of the police officers who had testified in the voir dire and that he could “indicate” the person who had placed a blanket over his head and the other person who had punched him in the chest.

Notice of Motion : to receive additional evidence

91.  By a Notice of Motion filed with the court on 7 December 2011 the 2^nd applicant seeks the leave of the court to receive additional evidence, namely affirmations of Wong Tsz Him and Lo Chi Hung affirmed on 2 and 6 December 2011 respectively, at the hearing of the application for leave to appeal against conviction.  Lo Chi Hung, a partner of Messrs Patrick Mak & Tse, obtained a statement from Wong Tsz Hung in respect of the events of the evening of 26 August 2009 at 45, of Ma Tin Village.  Wong Tsz Hung’s affirmation exhibits an undated statement in English which he said was taken from him on 2 January 2011 by Lo Chi Hung.

92.  No explanation has been advanced on behalf of the 2^nd applicant as to why the statement of Wong Tsz Hung was not provided to the judge at trial when the issue of calling him as a witness was raised with the judge, first on 7 January and later on 10 January 2011.  Given that the statement was taken from Wong Tsz Hung on 2 January 2011, clearly it was available to be provided to the court.  In those circumstances, we are not prepared to receive the evidence.

THE LAW

93.  As Li CJ observed of the ‘finality rule’ in his judgment, with which all the other judges agreed as to the relevant principles, in HKSAR v Wong Sau Ming [55] :

“ The rule is conducive to a fair trial. Its rationale is that, as a matter of commonsense, a criminal trial should be kept within proper limits. The court should focus on the issues in the case. Its attention should not be diverted to collateral issues such as credit, the exploration of which may unnecessarily blur or confuse the real issues in a cloud of detail. Although the rule has sometimes been criticised, it is well-established and necessary. However, the distinction between questions going to the issues in the case and those going to credit is sometimes difficult to draw and in some cases, can be a rather thin one.”

94.  Of the exceptions to the ‘finality rule’ Li CJ went on to say that they were well established and allowed proof, “by independent evidence of matters which tend to affect the credibility of the witness.”

95.  In So Kam Tong at trial the defendant challenged unsuccessfully the admissibility of out-of-court statements, allegedly made by him to the police, on the basis that he had been assaulted and threatened in order to make him disclose the whereabouts of the deceased.  He said that the police officers who had arrested him had punched him and squeezed his private parts.  Not disclosed to the defence at trial was the fact that another person, Chu, had been arrested by police officers, including some of those involved in the arrest of the defendant, on the same day.  He complained to the Complaints Against Police Office of having been subjected to threats and violence, including having his private parts squeezed.

96.  In the course of the judgment of the court allowing the appeal against conviction, Stock VP identified the relevance to the appellant’s case of the material relating to Chu [56] :

“ The problem with the respondent’s argument is that it presupposes that the question of Chu’s complaint was a matter that went to credit only and that the judge would have been bound for that reason to treat any answers given by criticised police officers as final. In our judgment, however, Chu’s complaint went beyond credit. It went to an issue in the applicant’s case, namely, the objective of the investigating team on the night of 22 May 2008 by reference to their conduct that very night in the course of the one investigation. The defence case was that the police were desperate to find the missing lady and that the two senior officers running the team were willing to use and countenance violence in order to locate her. The complaint which Chu had made provided potential support for the applicant to that end. It was evidence that was capable of doing more than merely damaging the credibility of police officers, by reference, say, to their conduct on some other occasion and in some other case. It was evidence about the behaviour of one police squad and its directing officers at exactly the same time in the course of precisely the same investigation which they were undertaking in respect of the applicant. It had the potential, in other words, to bear on what truly happened to the applicant that night.

 The cases establish that the line between calling evidence going only to credit as opposed to addressing the issue in the case is not always an easy one to draw but in the circumstances which we have particularised - and the question is always fact and context specific - we are satisfied that cross-examination about what happened to Chu that night would be cross-examination as to an issue in the case and that, further, it would be open for the defence to call Chu.”

97.  In Harmer there was a striking similarity in the nature of the complaints made by the defendant at trial, and advanced in a voir dire as a challenge to the admissibility of alleged out-of-court confessional statements, as to his mistreatment by the arresting police officers and that of a witness, Hunter, he wished to call in respect of mistreatment allegedly visited on Hunter by the same police officers some months earlier on the occasion of his own arrest.  The defendant testified that one of the officers had struck his genitals and placed a revolver close to his temple and pulled the trigger on a number of occasions, albeit without the weapon discharging.  Hunter would have testified of having experienced similar violence from the same police officer, which led to him signing a confession fabricated by the officer.  The trial judge’s refusal to allow Hunter to be called to give evidence in the defence case in the voir dire was one of the grounds on which the appellant’s convictions were quashed.

98.  In Polley a majority of the Court of Criminal Appeal of South Australia allowed the appeal and quashed the conviction of the appellant.  The appellant contended that the police officers who had stopped and searched his car, which resulted in charges in respect of dangerous drugs, had no proper statutory cause to stop him.  It was his case that the police officers had lied in respect of that issue.  The trial judge ruled inadmissible evidence arising from records of any complaints made to the Police Complaints Authority about two named police officers involved in the search.  Mullighan J, with whom Nyland J agreed, said of the issue of the illegality of the search by the two police officers of the appellant, that [57] :

“ Evidence that they had behaved in a similar manner on previous occasions was relevant to the issue and, if denied, could be proved by independent evidence.”

He concluded that it was :

“ … not necessary to show that the two police officers, or either of them, had on earlier occasions behaved in a manner which was strikingly similar in the context of search and seizure such as would satisfy the test for admissibility of evidence of similar facts against an accused person. It was sufficient if there was evidence which could show that they, or either of them, had behaved in disregard, in a serious way, of preconditions for the exercise of statutory or, common law powers regarding the rights at liberty of the subject.”

99.  In R v Busby [58] the Court of Appeal of England and Wales quashed the conviction in circumstances where the judge in the trial had refused to allow the defence to call a witness to rebut the denial of police officers that they had threatened the witness to prevent him from testifying for the defence.  Although the appellant did not give evidence at trial it was suggested to police officers that they had fabricated oral evidence which they credited to the appellant.  In the judgment of the court Eveleigh LJ said that the evidence of the witness was admissible because [59] :

“ If true, it would have shown that the police were prepared to go to improper lengths to secure the accused’s conviction.”

100.  In R v Edwards [60] the Court of Appeal of England and Wales said that, in the context of an issue at trial of allegedly fabricated admission, that the police officer testifying to that admission could be cross-examined to make the jury aware of the fact that his evidence of an admission in a previous case was demonstrably disbelieved, but where an acquittal in the earlier case did not necessarily indicate that the jury disbelieved the police officer, such cross-examination was not to be allowed.  Lord Lane CJ went on to suggest that the decision in Busby might be explained on the basis that the police officers were biased against the defendants, so that they were prepared to prevent a potential witness from giving evidence on behalf of the defendant.  Otherwise, in their judgment that decision was inconsistent with long-standing principle.

101.  However, it is to be noted that in Wong Sau Ming the Court of Final Appeal declined to follow Edwards, noting that “..English cases in these matters should not be regarded as having any precedent value in Hong Kong.”

102.  In the 2^nd applicant’s case the evidential link between the 2^nd applicant’s testimony and that of the prospective witness, Wong Tsz Hin, as described to the judge, was weak and tenuous.  Each of them had allegedly received a punch (s) and had their heads covered, one with a hood but the other with a blanket.  There was no other supporting relevant evidence.  It was not suggested that the police officers had tried to force admissions from Wong Tsz Hin.  The two events were wholly unconnected investigations, separated in time by 7 weeks.  Clearly, the nature of the cross-examination of the police officers did not go to an issue in the case.  Rather, it was relevant to credibility only.  Its relevance was tenuous at best and not of substantial probative value.  We are satisfied that the prospective evidence was not such that fell within the exceptions to the ‘finality rule’ in respect of questions as to collateral matters, including credit.  Accordingly, in our judgment the judge was correct to decline to receive that evidence.

The acts of the 2^nd applicant relevant to unlawful trafficking

103.  At an early stage in her summing up, the judge reminded the jury that the prosecution put its case in respect of both counts of unlawfully trafficking and of manufacturing a dangerous drug on the basis of joint enterprise.  Of the joint enterprise, she said that the prosecution contended that [61] :

“ ...the 1^st and 2^nd defendants and Mr Yuen were knowingly in possession of drugs in the carrier bag and in the flat for the purposes of trafficking; that they knew the substance in the bag was cocaine; that they had such dangerous drugs unlawfully and were trafficking in those drugs.”

104.  Of the ingredient of possession, the judge directed the jury [62] :

“ An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place so that any one of them may go there and move or take some of the articles as and when they see fit, then all are in control of the product in the sense that I have described control, and all are in possession of it.”

105.  Of the ingredient of ‘trafficking’, the judge said that it included, possessing it for the purpose of supplying it to others [63].

106.  Then, the judge directed the jury that the prosecution case in respect of the applicants and Yuen Kin San was that, “…they were all responsible for the acts of the others in carrying out their joint enterprise.”  In that context, the judge posed the question, “Can you draw the inference that they were all acting together in relation to the manufacturing and the trafficking?” [64]

107.  Clearly, the circumstances of the arrest of the applicants were cogent evidence relevant to the issue whether or not the applicants were acting together in relation to unlawful trafficking in dangerous drugs. All three men emerged from the flat together.  The 1^st applicant was found holding a carrier bag which contained the dangerous drugs the subject of Count 2 and, on the prosecution case, the 2^nd applicant was in possession of keys to the premises.  As the judge reminded the jury each of the applicants had visited the premises on a number of occasions in the period 3 to 9 July 2009 [65].  The CCTV film depicted the 1^st and 2^nd applicants travelling together in the lift up to the 16^th floor, where the premises were located, on 3, 6 and 8 July 2009.  Similarly, they were depicted travelling together in the lift down from the 16^th floor on 7 July 2009.  Very obviously, as the judge pointed out to the jury, given the absence of any furnishings, the flat was not a residence.  Further, as she invited the jury to consider, “...it is difficult to see how regular visitors could not have seen the contents of the kitchen and bedroom or not known what was going on in those premises.” [66]

108.  We are satisfied that the directions that the judge gave the jury in respect of their approach to the ingredients of the offence of unlawfully trafficking in the dangerous drugs, the subject of Counts 2 and 3 were entirely appropriate, having regard to the evidence led in the prosecution case.  The issue for the jury was simple : were they satisfied in respect of each applicant that his acts, together with the acts of those they found to be a party to the joint enterprise, were acts done to exercise possession and control of the dangerous drugs for the purpose of supplying them to others?

109.  For the reasons articulated earlier in respect of the 1^st applicant we are satisfied that the verdicts of the jury in respect of the 2^nd applicant on Count 1 (Not guilty) and Count 3 (Guilty) are not inconsistent.  The elements of the offence of manufacturing a dangerous drug are quite different from the elements of the offence of unlawfully trafficking in a dangerous drug. The acquittal of the 2^nd applicant in respect of the count of manufacturing did not impact in a determinative way on the consideration of the jury of whether or not the 2^nd applicant was unlawfully trafficking in the dangerous drugs found on the premises (Count 3).

Conclusion

110.  In the result, we are satisfied that there are no merits in the grounds of appeal against conviction advanced on behalf of the 2^nd applicant.  Accordingly, the 2^nd applicant’s application for leave to appeal against conviction on Counts 2 and 3 is dismissed.

111.  In light of our statements in paragraph 80 of this judgment, we direct that, if he wishes to do so, the 1^st applicant file with the court within 14 days a written submission as to why this court should not exercise its power under section 83 W (2) of the Criminal Procedure Ordinance, Cap. 221 to order ‘loss of time’ in respect of the 1^st applicant. Similarly, if the 1^st applicant wishes to oppose an order that the costs of these proceedings be made in favour of the respondent a written submission is to be filed with the court within 14 days.  Such reply as the respondent might wish to make is to be filed within 7 days thereafter.

[1] HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1, at page 11 C-E, paragraph 25.  There, this court cited the judgment of the Court of Appeal of England in R v Medway 62 Cr App R 85 at 98.

[2] Appeal Bundle; page 109, counter # 148.  Appeal Bundle; page 219, counter # 123-6.

[3] Appeal Bundle; page 217, counter # 108.

[4] Appeal Bundle; pages 110-1; counter # 155-160; 172 and 178.

[5] Appeal Bundle; pages 115-6, counter # 182-6.

[6] Appeal Bundle; pages 222-3, counter # 145-154.

[7] Appeal Bundle; page 217, counter # 108.

[8] Appeal Bundle; pages 228-9, counter # 195-8.

[9] Affirmation of the 1^st applicant filed 25 June 2012, paragraph 9(j); HWY-2, Instructions dated 27 October 2010.

[10] Appeal Bundle, pages 423 L - 425 S; pages 437 K - 446 Q.

[11] Summing up, page 18 R-T.

[12] Summing up, page 22 B-H.

[13] Affirmation of Mr Stirling dated 26 July 2012, paragraph 4.

[14] Affirmation of Mr Stirling dated 26 July 2012, paragraph 5.

[15] Affirmation of the 1^st applicant dated 26 June 2012, paragraphs 5-8.

[16] Appeal Bundle, page 761 K-N.

[17] Affirmation of Mr Stirling dated 23 July 2012, paragraph 5.

[18] Affirmation of Mr Peter Wong dated 20 July 2012, paragraph 12.

[19] Transcript : DSIP Chan Kwong Ming, page 777 S-U.

[20] Appeal Bundle, page 577 D-P.

[21] Transcript, pages 906-7.

[22] Appeal Bundle; page 9, paragraph 13.

[23] Transcript (DPC 34311) page 798.

[24] Appeal Bundle, page 108.

[25] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126; at page 143, paragraph 47.

[26] R v Birks (1990) 48 A Crim R 385.

[27] Transcript, page 577 T.

[28] Transcript, page 577 G-H.

[29] Summing up, page 21 I-S.

[30] Summing up, pages 37 J - 38 H.

[31] Transcript, page 576 L-O.

[32] HKSAR v Au Yuen Mei (No 2) [2004] 4 HKC 130.

[33] HKSAR v Au Yuen Mei, page 131 H.

[34] R v Myers [1998] AC 124.

[35] HKSAR v Au Yuen Mei, page 133 B-D.

[36] Consultation Paper No. 138 (1985) at paragraph 7.44.

[37] HKSAR v Mohamedajoeb [2010] 5 HKLRD 204.

[38] HKSAR v Mohamedajoeb; pages 209-210, paragraphs 18-19.

[39] HKSAR v Mohamedajoeb; page 208, paragraph 10.

[40] R v Myers, page 142 B.

[41] AG v Li Fook Shiu, Ronald [1990] 1 HKC 1 at 13 B-C.

[42] Summing up, page 16 T.

[43] Summing up, page 18 H-K.

[44] Transcript, pages 405-7.

[45] Transcript, pages 364-5.

[46] Transcript, page 365 F-G.

[47] Transcript, page 401.

[48] HKSAR v So Kam Tong [2010] 5 HKLRD 101.

[49] Transcript, page 425 C-D.

[50] Transcript, page 425 R.

[51] R v Polley (1997) 93 A Crim R 325.

[52] R v Harmer (1987) 28 A Crim R 35.

[53] R v Anderson (1991) 57 A Crim R 143.

[54] R v Malik (2002) 2 Cr App R 8.

[55] HKSAR v Wong Sau Ming (2003) 6 HKCFAR 135, at page 149 F-H, paragraph 26.

[56]  HKSAR v So Kam Tong; pages 108-9, paragraphs 37-8.

[57] R v Polley, page 341.

[58] R v Busby (1981) 75 Cr App R 79.

[59]R v Busby, page 82.

[60] R v Edwards [1991] 1 WLR 207, at 215 F-H.

[61] Summing up, page 12 C-F.

[62] Summing up, page 18 H-K.

[63] Summing up, page 17 G-J.

[64] Summing up, page 18 P-S.

[65] Summing up, page 21 J-K.

[66] Summing up, page 21 N-P.