HKSAR v. AU YEUNG SUK YEE

CACC 360/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2000

(ON APPEAL FROM HCCC NO. 51 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicant was originally charged in an indictment containing two counts. In count 1, she and Choi Pui Shing were jointly charged with trafficking in a dangerous drug. In count 2, the Applicant alone was charged with permitting premises to be used for trafficking in a dangerous drug. The trial took place last August before Ms Recorder Leong SC in the Court of First Instance. The Applicant and Choi pleaded not guilty.

2. Choi was alleged to have admitted that he was the owner of the drugs found in the flat which he occupied with the Applicant. Before a jury was empanelled, a voir dire was held to determine the admissibility of those alleged admissions. At the conclusion of the voir dire, the judge ruled them to be inadmissible. Since the alleged admissions had constituted the only evidence connecting Choi with the drugs, the prosecution offered no evidence against him, and the judge entered a verdict of not guilty against him. The prosecution also offered no evidence against the Applicant on count 2, and she was acquitted on that count.

3. The indictment was then amended, leaving the Applicant alone facing a single charge of trafficking in a dangerous drug. A jury was empanelled to try her. At the conclusion of the trial, she was convicted by a majority of 6:1. She was sentenced to 14 years' imprisonment. She now applies for leave to appeal against her conviction.

The facts

4. The relevant facts were these. On the morning of 3 November 1999, officers of the Customs and Excise Department executed a search warrant at a flat in Tuen Mun. The Applicant was there. In the main room of the flat, they found a large number of small packets of heroin on a table together with drugs paraphernalia. The retail value of the heroin was about $500,000.00. The Applicant was the tenant of the flat. She lived there with Choi, who was her boyfriend, and she, Choi and a friend of Choi all had keys to the flat.

5. The Applicant gave evidence that she had not been feeling well on the previous evening. When she had come home, she had taken a sleeping pill and had gone straight to bed. That was why she had slept later than usual that morning. She had not known that there was any heroin in the flat (or any drugs for that matter) or who it belonged to. That was what she told the officers at the time. There was no forensic evidence connecting her to the heroin or the paraphernalia, and no traces of heroin were found on her hair, nails or clothes. Sums of money totalling about $90,000.00 were found in her knapsack and in her bedside cabinet. She was alleged to have told the officers that the money was her savings. At trial, she said that the money was a loan from her grandmother, and her grandmother gave evidence corroborating the Applicant's testimony.

6. We have referred to the facts at some length to demonstrate how important the Applicant's credibility was to the outcome of the case. The prosecution's case was that the Applicant must have known about the heroin in the flat, and that she had been lying when she had claimed that she had known nothing about it. Indeed, the credibility of the witnesses, particularly that of the Applicant, was emphasised by the judge in her careful summing-up.

The direction on character

7. The Applicant had no previous convictions. We have been asked to assume that the jury was told that in the course of the trial. It was therefore necessary for the judge to give the jury a direction relating to her hitherto good character. The judge did not initially give the jury such a direction, and the question whether such a direction should be given only arose when the judge was telling the jury at the end of her summing-up about the arrangements which would be made for their lunch. She asked counsel whether there was anything which they wished to raise. Counsel for the prosecution then said:

"My Lady, the accused is a person of previous good character. I wonder if your Ladyship would like to give a character direction as well?"

The judge then said:

"Members of the jury, the prosecution, very rightly, remind you that the defendant is of good character and has no previous convictions. These are matters that you may or may not wish to take into consideration in the course of your deliberations. It is there for your background knowledge."

The judge then dealt with other administrative arrangements before the jury retired to consider its verdict. Although there is an additional criticism of the judge's summing-up, the sole ground of appeal is that the character direction which the judge gave the jury was insufficient.

The law on good character directions

8. The law on good character directions was comprehensively reviewed by the Court of Final Appeal in Tang Siu Man v. HKSAR [1998] 1 HKLRD 350. However, to understand its conclusions, it is necessary to appreciate what two English cases - R. v. Vye [1993] 1 WLR 471 and R. v. Aziz [1996] 1 AC 41 - decided. In Vye, the Court of Appeal held that when a defendant has no previous convictions, the jury should be directed that the defendant can rely upon his good character as making it more unlikely than would otherwise be the case that he would commit crime ("the propensity direction"). And if such a defendant had either given evidence at his trial or had made pre-trial statements, the jury should be directed that the defendant's good character should be taken into account in the defendant's favour when the jury was assessing what weight to give to his evidence or pre-trial statements ("the credibility direction").

9. Vye was affirmed in Aziz, in which the House of Lords explained when a defendant could be said to be of good character so as to be entitled to character directions of the kind approved in Vye. That was said to be subject to the judge's residual discretion (a) to decline to give character directions in the case of a defendant without previous convictions if the judge considered it an insult to common sense to do so, or (b) to qualify the character directions by adding an appropriate rider to cater for any criminal conduct on the part of the defendant revealed in the course of the trial.

10. In Tang Siu Man, the Court of Final Appeal concluded that there was no need to impose the Vye and Aziz regimes on trial judges in Hong Kong. Where positive evidence of good character has been adduced, i.e. evidence of the defendant's favourable standing and reputation, and nothing discreditable concerning the defendant has emerged, a summing-up which fails to give a full Vye direction - and if needs be something more - might well render the summing-up unbalanced and unfair. However, where the evidence of good character consists simply of the absence of previous convictions, one limb of the Vye direction may be enough. The court gave the example of a case in which the central issue in the trial was credibility, and where an inclination on the part of the jury to believe the defendant would inevitably entitle the defendant to be acquitted. In such a case, it was said that a failure to give the credibility direction may well render the summing-up unbalanced and unfair, but to give the propensity direction may be a surplusage.

The deficiencies of the character direction in the present case

11. In the present case, we have been asked to assume that the evidence of the Applicant's good character consisted only of the absence of previous convictions. Thus, if the judge, in the exercise of her discretion, had limited her character direction to the credibility direction, we doubt whether it could be said that her failure to give the propensity direction would have rendered the summing-up unbalanced and unfair.

12. However, the judge merely reminded the jury that the Applicant was of good character and had no previous convictions. She did not tell the jury what the relevance of that was or for what purpose the jury should take that into account. Even if it had not been necessary for the judge to explain that the evidence was relevant to the likelihood of the defendant having committed the offence with which she was charged, the very least which the judge should have told the jury was that the evidence was relevant to the Applicant's credibility. The failure to give a credibility direction in the present case constituted a material misdirection.

13. There are two other matters which in our view rendered the character direction which the judge purported to give the jury insufficient. First, having reminded the jury that the Applicant was of good character and had no previous convictions, the judge undermined what positive effect this incomplete direction might have had by telling the jury that these were "matters that you may or may not wish to take into consideration in the course of your deliberations". If the jury had taken those words literally, they might well have thought that they could ignore those matters if they wished. That would not have been a permissible approach. A character direction should require the jury to take the defendant's good character into account, although the weight to be given to the defendant's good character is entirely for the jury to assess. In the context of a particular case, a jury may choose to give it little weight or no weight at all, but the jury must nevertheless be told that they must take the defendant's good character into account: see the terms of the direction approved by the Court of Appeal in R. v. Lee Kam Yuen [1995] 1 HKCLR 264 at p. 266. Indeed, that was why the Court of Appeal in England in R. v. Miah and Akhbar [1997] 2 Cr. App. R. 12 disapproved at pp. 22F-23A of a direction which informed the jury that it was merely entitled to take the defendant's good character into account. Implicit in that disapproval was the notion that a jury should be directed that it is bound to take it into account, but that the weight which it gives to the defendant's good character is a matter entirely for the jury to assess.

14. Secondly, whatever remaining use the jury could have made of the reminder that the Applicant was of good character and had no previous convictions was "relegated into insignificance" (to use the phrase of Mr Blanchflower for the Government) when the jury was told: "It is there for your background knowledge." The Applicant's character was not part of the background. It was an important component of her defence. In Aziz, Lord Steyn said at pp. 50G-51A:

"It has long been recognised that the good character of a defendant is logically relevant to his credibility and to the likelihood that he would commit the offence in question. That seems obvious. The question might nevertheless be posed: why should a judge be obliged to give directions on good character? The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance." (Emphasis supplied)

The judge's parting comment that the Applicant's good character was for the jury's background knowledge cannot stand in the light of its true probative value.

15. These criticisms of the character direction which the judge purported to give are all accepted by Mr Blanchflower as being justified. Indeed, it was he who advanced these criticisms in his own skeleton argument. We are extremely grateful to him for his fair and careful analysis of the judge's direction and its effect in law. He accepts that the direction constitutes a material misdirection. Indeed, he accepts that the Applicant's conviction should be quashed because this is not a case for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap. 221). We agree. It cannot be said that the jury would inevitably have convicted the Applicant if an appropriate character direction had been given. Since the Applicant's credibility was so important to the outcome of the case, a proper credibility direction could have tipped the scales in the Applicant's favour.

16. We do not wish to be judgmental but the problem which occurred in this case could have been avoided. First, when the judge's failure to give a character direction at all had been pointed out to her, it would have been wiser for the judge to collect her thoughts and, if necessary, to adjourn for a short while to remind herself of the proper direction to give in such circumstances. We sympathise with the judge's wish not to disrupt the flow of the case by a short adjournment at the end of the summing-up, but if she had retired for a short while to remind herself of the proper wording of the character direction no problems would have arisen. Secondly, it is regrettable that the deficiencies in the character direction which the judge purported to give were not pointed out to her by counsel. (In this connection, we should make it clear that, like Mr Blanchflower, Mr Christopher Grounds who has appeared for the Applicant today did not represent her at the trial). It may be that counsel for the prosecution did not want to correct the judge again. It may be that, like the judge, counsel did not appreciate at the time the deficiencies in the direction. And even if they had, they may, in the heat of battle, not have been able to put their finger on precisely what those deficiencies were. But if they had appreciated at the time the ways in which the direction was defective and had drawn the deficiencies to the judge's attention, the problems which the direction posed could have been eliminated.

The direction on knowledge

17. We turn to one other criticism of the directions which the judge gave the jury. The prosecution's case was that the Applicant had been trafficking in the drugs, in that she had been in possession of the drugs for the purpose of trafficking. The jury had therefore to be directed as to what constituted possession in law. The judge gave the jury the following direction:

"Possession in law consists of the act of possessing, coupled with the knowledge of the presence of the existence of the substance, as well as the nature of the substance."

The judge returned to the question of knowledge a little later when she said:

"[Possession] depends on whether she had knowledge of the existence and the nature of the thing, because if she does not even know of its existence or its nature, then she could not possibly have been in control or custody of it, and it follows that she could not therefore be said to be in possession of it."

18. In these passages, the judge gave the jury an impeccable direction to the effect that the Applicant had to have actually known that the drugs were in the flat. However, later in her summing-up the judge made certain comments which may have led the jury to conclude that something less than actual knowledge of that was sufficient. At one stage she said:

"The two main areas of contention between the prosecution and the defence, and from which the prosecution say you can infer the defendant's guilt, involved the sum of money that was found and whether the defendant knew or ought to have known about the drugs in the flat." (Emphasis supplied)

A little later she said:

"Then the issue arose as to whether the defendant knew or ought to have known about the drugs in the flat ...." (Emphasis supplied)

We doubt whether the judge was in fact saying in those passages that actual knowledge was not required, and that the Applicant could be regarded as having been in possession of the drugs if she ought to have known about their presence in the flat. What the judge was probably saying, we think, was that it was open to the jury to infer that the Applicant had had actual knowledge of the presence of the drugs in the flat if the jury concluded that she ought to have known that they were there. But the possibility that the jury did not understand the judge's comments in that way cannot be excluded, and it is therefore possible that the jury thought that the Applicant could be convicted if she ought to have known that the drugs were in the flat, even if she had not actually known that.

19. Having said all that, it is unnecessary for us to reach a concluded view on the issue since the absence of a proper character direction is sufficient by itself to constitute a material irregularity in the trial justifying the quashing of the Applicant's conviction. All we need say is that the comments which the judge made on knowledge reinforce our view that the proviso should not be applied.

Conclusion

20. For these reasons, we grant the Applicant leave to appeal against her conviction, we allow the appeal, we quash the conviction and we set aside the sentence which was imposed. The only remaining question is whether we should order a re-trial. The Government does not ask the court to order a re-trial. Mr Blanchflower takes the view that the evidence against the Applicant is not strong, and now that the full nature of the Applicant's defence is known it is recognised that a properly directed jury could well acquit her. We are not in a position to make as informed an assessment of the likelihood of acquittal as the prosecuting authorities, and in the circumstances it would be quite wrong for us to second-guess their appreciation of the probabilities of an acquittal. In the circumstances, we do not order the re-trial of the Applicant, and she must be discharged.