HKSAR v. MACATANGAY LUIS AND ANOTHER

CACC 166/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2000

(ON APPEAL FROM HCCC 328 OF 1999)

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J U D G M E N T

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Hon Mayo VP:

1. The applicants were convicted of trafficking in a large quantity of "Ice" after a trial in the High Court before Deputy Judge Longley and a jury. They now seek leave to appeal against their convictions.

"PARTICULARS OF OFFENCE

MACATANGAY LUIS and YUEN Kwai-choi, on the 25th day of May, 1999 at Mody Road, Tsim Sha Tsui, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 29,990.48 grammes of crystalline solids containing 29,764.29 grammes of methamphetamine hydrochloride."

2. Acting on information the police mounted an operation on 25 May 1999 in Mody Road, Tsim Sha Tsui in respect of what they had been led to believe would be the transfer of almost 30 kilos of Ice at the junction of Bristol Avenue. Five officers were in attendance. They included a Chief Inspector, a Senior Inspector and three other officers.

3. Perhaps the most notable feature of this case was that the person who provided information to the police Mr Liu Yat-sing gave evidence concerning this at the trial. He was called as a witness for A2 who was D2 in the trial below.

4. He provided the police with information on an incremental basis and the planning of the operation proceeded as the information became available.

5. According to Mr Liu's evidence he received instructions from a Mr Chan Kar-chun to assist him in the delivery of the consignment of the Ice to a purchaser. For this he would receive a reward of $50,000. Mr Liu then communicated with a police constable by the name of Wong Ping. It was agreed that if a successful seizure of the consignment was made and the purchaser was apprehended he would receive a reward of $20,000. It perhaps should be added that Mr Liu had a bad criminal record and had recently served a prison sentence.

6. Mr Liu also communicated by telephone with A2 who it was claimed was a close friend. This friendship was confirmed when A2 gave evidence.

7. Mr Liu asked A2 to assist him in delivering a consignment of "industrial raw materials" to a customer. He asked if A2 would lend him his Saab Motor car and also assist in the delivery arrangements. A2 agreed to this. Mr Liu used the Saab to obtain the Ice. He drove the car to A2's residence in Taipo on the morning in question and transferred the consignment from the Saab to A2's other car a Volvo. Mr Liu told A2 that he would use the Saab to go to collect someone from the Airport and requested A2 to deliver the materials in the Volvo to the purchaser in accordance with instructions which would be given to him by telephone during the course of the day. According to Mr Liu A2 had no knowledge whatever that the materials in the boot of the Volvo were dangerous drugs or any form of contraband. He also claimed that he had received an assurance from the PC Wong that if he kept the police fully informed he would not be charged with any criminal offence in relation to the dangerous drugs and that the arrangement had been that no arrests would be made until after he and A2 had left the scene.

8. Mr Liu said that after leaving A2's residence he drove around in the Saab and parked it at the Kwong Fat car park in Kwong Wa Street shortly before 11:00 a.m.

9. He then received instructions from Mr Chan concerning the delivery. He was to pick up the purchaser of the Ice from outside the Stanford Hotel in Soy Street at 4:00 p.m. and drive him to the Holiday Inn at Mody Road where the Ice would be transferred from the boot of the Volvo to the Saab. The purchaser had been given the registration number of the Saab and would make himself known. He passed all this information on to PC Wong and made the necessary arrangements for A2 to drive the Volvo to the Holiday Inn.

10. According to Mr Liu everything went according to plan. He left the car park shortly before 4:00 p.m. and picked up a man outside the Stanford Hotel who knocked on his window and drove him to the Holiday Inn Hotel. He subsequently learnt that the man he had picked up was A1. He indicated to the man that he should get out of the car and it was shortly after this that A1 and A2 were arrested.

11. A2's evidence was that after Mr Liu left in the Saab he had washed his Volvo and then driven to Mongkok where he visited various shops with the intention of inspecting audio equipment. He claimed not to be able to remember the name of the car park where he had parked the Volvo. He had then received instructions from Mr Liu that the purchaser of the industrial goods wanted to examine samples and that he was to drive the Volvo to the Holiday Inn and arrive there at 4:00 p.m. He complied with these instructions.

12. After he had arrived he saw Mr Liu arriving in the Saab with another man in the car. Mr Liu pointed to him and the man got out of the car. A2 opened the boot and the man who had been identified by Mr Liu joined him. He handed the small bag to the man who he subsequently learnt was A1. After this A1 assisted him in putting the small case onto the big case and strapping them together and carrying the large suitcase from the boot and moving it across to the pavement. According to A2 he then smiled and nodded to A1. It was immediately after his that A1 and A2 were arrested.

13. A1's evidence was that he was on a business trip from the Philippines. He was purchasing domestic items for resale there.

14. After leaving his hotel he was approached by a man he recognised but whose identity he could not remember. He said that if he was free that afternoon he could earn some money. If he assisted in moving some luggage he would receive a reward of $10,000. He was told to go to the 7-Eleven store before 4:00 p.m. He went there expecting to see the man but instead another man approached him. He told him to get into a taxi which took him to a place where a Saab motor car was waiting. The man told him to get into the Saab and he was driven to the Holiday Inn. He asked to see his friend but his request was ignored. He was told to go over to another car where he saw a man he subsequently knew as A2 standing by the rear of the car. A2 handed him the small bag which instinctively he took. He then helped A2 take the large suitcase out of the boot of the car. Immediately after this he and A2 were arrested.

15. The police officer's evidence mainly related to keeping the Kwong Fat car park under surveillance and observing in detail the delivery of the dangerous drugs outside the Holiday Inn Hotel. For the purposes of this application the main thrust of the prosecution case at this juncture was exactly what A1 had done at the time of the delivery. Had he simply been reacting to events in accordance with his testimony or had he taken an active role such as definitely taking possession of the dangerous drugs. According to the police testimony it had been the latter. In this connection Chief Inspector Dicker gave evidence that A1 opened the small bag in the presence of A2 and that the contents of the bags containing the dangerous drugs would have been visible. Also the police evidence was to the effect that A1 took the case from the car to the pavement. The police version was to an extent supported by the evidence of A2.

16. After A2 had given this evidence Mr McGuinniety for A1 made an application to the Judge to adduce evidence in rebuttal. The evidence which Mr McGuinniety sought to introduce was a record maintained by the shroff at Kwong Fat car park which was Exhibit D3 which indicated that both the Saab and the Volvo had entered the car park at 10.52 a.m. that morning. He suggested that if this evidence was accepted as being truthful it would have been an amazing coincidence if this had happened by chance. This being the case it would have been cogent evidence that A2 had been giving an untruthful account of what had transpired that day which would in turn have called in question his testimony which tended to incriminate A1.

17. At this juncture it is possibly helpful to review the situation which existed when these applicants gave their testimony.

18. Each applicant was giving a separate version of the events which had transpired. There was not necessarily a conflict in the evidence they would be giving although clearly there must have been a risk so far as A1 was concerned that A2 would give evidence in conformity with the evidence of the police officers.

19. Obviously when the police officers gave their evidence concerning the circumstances surrounding the handing over of the dangerous drugs it was incumbent upon his counsel to cross-examine the officers and put to them A1's case that he had only been instinctively reacting to the situation and not actually taking possession of the dangerous drugs.

20. Was there any duty imposed upon A2's counsel to similarly cross-examine A1 when he gave evidence to this effect? I do not think so. There was already the police evidence to this effect. A1's state of mind would not have any direct bearing upon A2's case as it would have been immaterial to the defence he was running whether A1 was the actual purchaser of the dangerous drugs or simply an unknowing intermediary interposed by purchasers in the background.

21. Both applicants' legal advisors knew about Exhibit D3 as this formed part of the unused material made available by the prosecution. In this situation it was clearly necessary for A1's counsel to make a decision based upon his client's instructions as to whether it was preferable to call the maker of Exhibit D3 and run a cut throat defence and incur the almost inevitable consequence of A2 giving damaging evidence against A1 or taking the chance of A2 giving evidence consistent with A1's evidence. As can be seen A1's counsel decided upon the latter course. The main question which arises on this application is whether in these circumstances the Judge was right to make the order he did in permitting the rebuttal evidence to be adduced. In giving his reasons for permitting this evidence to be adduced the Judge said at p. 118 of the transcript:

"It is against this background that the defendant therefore seeks to call this evidence. The evidence called would not directly contradict the co-defendant's evidence that he'd seen the defendant move the luggage to the pavement but might well, as I have said, tend to show that his co-defendant was giving a wholly inaccurate account of the incident.

If he was not allowed to adduce this evidence the jury might convict him on the basis that the 2nd defendant was giving a wholly reliable account of what had occurred that day, and act upon the evidence of the 2nd defendant that he had seen the 1st defendant take possession of the bag and suitcase.

I'm satisfied that the interests of justice demand that this application be allowed. Assuming the 1st defendant's account to be true at the time he gave his evidence he could not reasonably have anticipated that the 2nd defendant was not going to tell the truth about this matter. I'm satisfied that rebuttal evidence is not confined to evidence that directly and expressly contradicts the evidence which it is sought to contradict. So long as there is a cogent connection between the evidence that it is sought to adduce and the evidence which it is sought to contradict.

I'm satisfied also that this is not evidence which relates to a collateral issue, it relates to the matters that are in issue in this trial. For that reason I give leave to the 1st defendant to adduce the evidence he now seeks to adduce. It appears from his submissions that counsel for the 1st defendant intends to use the evidence of the records of times of the entering of vehicles to the car park for an additional purpose in an attempt to discredit the police officers as to the times they said their vehicle entered and left the car park. I would not have allowed this application if that had been the sole purpose of adducing the evidence, but if the evidence adduced can be used incidentally for that purpose, then so be it."

22. Ground 1 of A2's perfected grounds of appeal is framed in this way:

"1. There was a material irregularity at the trial in that the learned Judge erred in allowing the 1st Applicant to call rebuttal evidence, namely Exhibit D.3, against the 2nd Applicant at the end of the 2nd Applicant's case, in that:-

(a) There was nothing in the 2nd Applicant's case which had arisen ex improviso against the 1st Applicant which the 1st Applicant could not reasonably have foreseen.

(b) Exhibit D.3 was in the possession of all the parties before the commencement of the trial, and the 1st Applicant had chosen not to make that part of his case.

(c) D1's application to call rebuttal evidence was based on the principles in R v. Fenlon 71 Cr. App. R. 307 and paragraph 4-315 of Archbold, which did not cover the situation at hand.

(d) Exhibit D.3 was not rebuttal in nature, and was inadmissible in law after the close of the cases of both Applicants: Day (1940) 27 Cr. App. R. 158; The Queen v. Ng Wan-fei [1973]-76] HKC 420."

23. The passage referred to in the 2001 edition of Archbold reads:

"J. REBUTTAL OF CO-DEFENDANT'S EVIDENCE

4-315 Authority appears to be lacking as to when defendant A can, after closing his case, call evidence to rebut evidence adversely affecting him given by or on behalf of defendant B after A had closed his case. It is submitted that the same principles should apply as regulate the calling of evidence in rebuttal by the Crown: see post, §§4-335 et seq. In practice, it sometimes happens that B gives evidence adversely affecting A which has not been put to A in cross-examination on behalf of B, so that A has had no opportunity of dealing with it. In such cases it is usual, and it is submitted correct, for the judge to allow A to be recalled to deal with the matter. It would seem right for the judge to allow A to call other evidence upon the point in rebuttal if he could not reasonably have anticipated the evidence given by B. (As to counsel's duty when cross-examining a co-defendant, see R. v. Fenlon, 71 Cr.App.R. 307, CA, post,§8-213.)"

24. Mr Tse submitted that the Judge had been in error when he exercised his discretion upon the basis of what he considered to be the interests of justice. What he should have done was to have regard to the principles referred to in the 2001 edition of Archbold at para. 4-315.

25. Mr Tse argued that the evidence of A2 against A1 was readily foreseeable. Mr McGuinniety took a calculated risk and had to abide by the consequences of his decision. It was definitely not a new issue which no human ingenuity could foresee and therefore not ex improviso.

26. Mr Tse also complained that Exhibit D3 could not be said to be rebuttal evidence concerning A1 taking possession of the dangerous drugs.

27. All of this however overlooks an important aspect of this matter. At p. 87 of the transcript when Mr McGuinniety was making submissions to the court he referred to conversations he had had with Mr Tse on the way in which they would be conducting their defences. He said that there had been a clear understanding reached between counsel that there was no necessity for counsel to attempt to discredit the evidence of the other defendant as both the defences which were being run were along the lines that the defendants had been the innocent dupes of other parties.

28. Mr Tse accepted that the circumstances referred to in the passage earlier cited in Archbold were not all embracing and that a general discretion was reposed in the Judge to have regard to what he deemed to be the interests of justice.

29. The Judge was faced with a situation where counsel for D1 had possibly acted contrary to the interests of his client on the basis of an understanding he had had with counsel representing D2. It has to be added that no blame whatever attaches to either counsel who personally were in no way to blame.

30. What is also important to bear in mind is that the purpose of introducing Exhibit D3 in evidence was not simply to discredit A2 as a witness. Its implications were far wider. It called in question the movements of A2 during the earlier part of the day and in particular cast grave doubts on A2's evidence in which he attempted to distance himself from Mr Liu during the course of that day.

31. It can be said without undue exaggeration that A2's evidence if believed by the jury would almost certainly have placed A1 in possession of the dangerous drugs. Having regard to the potentially very important nature of the evidence flowing from Exhibit D3 Mr McGuinniety would have been at a considerable disadvantage if he was deprived of the opportunity of making use of this evidence.

32. In these circumstances it cannot be said that the exercise of the Judge's discretion to allow this rebuttal evidence was plainly wrong. This ground of appeal must fail.

33. In the second ground of appeal which is closely associated with the first ground complaint is made that the Judge failed to give a Lucas direction in his summing up on A2's lies assuming that the jury concluded that he had told lies concerning his movements earlier in the day.

34. Ms Sin for the prosecution accepted that the Lucas direction given in relation to A1 did not suffice as it had not been directed towards lies which may have been told by A2. However she submitted that in the circumstances of the case no such direction was necessary. This was because the prosecution had not been placing reliance upon A2's lies.

35. With respect this cannot be right. This is clearly not a case where the lies in question are determinative of the result of the trial. Here the lies form part of the background evidence. This was a case where a Lucas direction was required. The failure to give this direction amounted to a material irregularity.

36. The question which then has to be considered is whether in all of the circumstances of the case it is open to the court to exercise the proviso under section 83 of the Criminal Procedural Ordinance, Cap. 221 on the basis of the court being satisfied that there has been no miscarriage of justice occasioned by the omission to give this direction. I am satisfied having regard to the overwhelming nature of the prosecution's case against A2 that the jury would have found him guilty even if the direction had been given. Accordingly the proviso should be exercised. The consequence of this is that in my view A2's application for leave to appeal against conviction should be allowed but treating it as the appeal it should be dismissed.

37. A1's first perfected ground of appeal is that the Judge wrongfully did not permit counsel to cross-examine Senior Inspector Kwok on Exhibit D3 the registration book at the Kwong Fat car park.

38. This registration book contained details of vehicles entering and leaving the car park on the day in question. The reason counsel wished to cross-examine the Inspector on the particulars contained in the register was to establish that the evidence given by the police concerning their surveillance of the car park was inaccurate as to time thus calling in question the accuracy of their evidence generally.

39. It would appear that counsel went about this the wrong way. The record had not been kept by the Inspector and was accordingly hearsay evidence. Para. 8-135 of the 2001 edition of Archbold sets out the way in which evidence of this nature should be put to a witness.

"It is improper for counsel, in cross-examining a witness, to describe to the jury the nature of a document inadmissible in evidence which he holds in his hand, while asking the witness to look at it and then say whether he still adheres to his answer. R. v. Yousry, 11 Cr.App.R. 13, CCA. The proper way is for counsel to put the document into the hands of the witness and, without describing it at all, simply to ask, 'Look at that piece of paper, do you still adhere to your answer?': ibid, per Lord Coleridge J., at p. 18; and see R. v. Tompkins, 67 Cr.App.R. 181, CA. A document which is inadmissible cannot be made admissible simply because it is put to a defendant in cross-examination: R. v. Treacy, 30 Cr.App.R. 93, CCA (considered post, §15-366)."

40. This is a correct statement of the law. The Judge was right to restrict the cross-examination in the way he did.

41. Grounds 3, 4 and 5 can conveniently be dealt with together. Complaint is made about the weight attached by the Judge to evidence of PW7 & PW8. These witnesses were police officers. The Judge made it clear in the summing-up that the jury were the judge's of fact and where their view of the evidence was at variance with the Judge's theirs should prevail. This appeared on the first and second pages of the directions. There was no question of there being any misdirection.

42. In Ground 6 complaint is made that the Judge gave inadequate directions on the question of what inferences could be drawn in relation to the applicant's knowledge. This was in connection with the circumstances which obtained at the time when the dangerous drugs were passed from A2 to A1.

43. The Judge made it clear that physical possession of the cases containing the dangerous drugs of itself may not constitute possession. What he said at p. 48 was:

"Now, members of the jury, I have told you about the presumptions that arise if you find beyond reasonable doubt that the defendant was in physical possession of the bags. You have heard that the 1st defendant admits that he touched both bags and indeed that he put the small bag on the ground and helped the 2nd defendant to lift the large suitcase to the ground.

The mere fact that he handled the bags in this way does not mean that he was in physical possession of them, because I have said one of the ingredients of possession is an intention to possess. If somebody simply thrusts a bag into your hands and then as an automatic reaction - you take it and put it onto the ground - then you have not got, you may think in those circumstances, an intention to possess the bag.

Similarly you may think that if someone appeared to be asking you to help him lift a suitcase out of a boot of a car and you took the other end of the suitcase and helped him lift the suitcase to the ground, then in those circumstances as well you would not intend to possess the bag. So if you accept the 1st defendant's account or think it might be true, you may think that the prosecution have failed to establish beyond reasonable doubt that he was in physical possession of the bags. In such case, the presumptions to which I have referred you would not arise.

There is, of course, evidence which contradicts the 1st defendant's account. There is the evidence of Inspector Kwok, supported by the observations of Inspector Dicker, that the 1st defendant actually unzipped the blue bag. There is the police evidence, supported by the 2nd defendant, that the 1st defendant moved both bags from the roadway onto the pavement."

44. This contained an accurate summary of the relevant evidence and satisfactory directions how the jury should consider it. Nothing more was required and in my view this ground fails.

45. In Ground 7 complaint is made concerning the directions given in relation to lies told by A1.

46. In the record of interview A1 said that the man who had approached him in relation to moving the baggage was a stranger. In his evidence in court he claimed that it was someone he had previously known. The direction given by the Judge was in these terms at p. 50:

"Do you think perhaps he realised that it was going to seem somewhat incredible that a stranger had approached him with this proposition to move baggage? Well, members of the jury, those are matters for you to consider. If you find that he was lying to you in court, bear in mind what I said to you earlier about lies; they do not necessarily mean that he is guilty of the offence charged."

47. The earlier reference was at p. 38:

"... If you are satisfied that that was a lie, that does not necessarily mean, of course, that the 1st defendant is guilty of the offence with which he is charged. A defendant may lie for a number of reasons other than because he is guilty of the offence with which he is charged. It may be to protect somebody else or to conceal some other behaviour on his behalf that he does not want revealed, or simply out of panic and confusion. And in this case, both in his record of interview and in his evidence-in-court he said that, he said he made those remarks because he was scared. Because after picking up those bags he did not know that the contents were dangerous drugs, so he told a lie, in fact, out of panic.

Now, members of the jury, if you think that this explanation for having said this may be true, or if you think there may be another innocent explanation - by 'innocent' I mean an explanation unconnected with his guilt of this charge - then disregard it. It is only if you are satisfied that he did not lie for some other reason that his lie can be regarded by you as evidence which supports the prosecution case."

48. These directions were impeccable. They were in conformity with the principles laid down in HKSAR v. Mo Shiu-shing [1999] 1 HKC 43.

49. In my view A1's conviction also was in no way unsafe or unsatisfactory and his application should be dismissed.

Hon Keith JA:

Introduction

50. I agree with Mayo V-P that the 1st Applicant's application for leave to appeal against his conviction must be dismissed, but I regret that I have reached a different conclusion from Mayo V-P in respect of the 2nd Applicant's application for leave to appeal against his conviction. I shall endeavour to explain why.

The 2nd Applicant's grounds of appeal

51. In relation to the two specific grounds of appeal relied upon by Mr Joseph Tse for the 2nd Applicant, I have reached the same conclusions as Mayo V-P. First, I agree that the trial judge could not be said to have erred in permitting evidence to be called on behalf of the 1st Applicant following the conclusion of the 2nd Applicant's case, even though that evidence could have been called on behalf of the 1st Applicant during his case. That is because the 1st Applicant's counsel had been led to believe that the 2nd Applicant would not be giving evidence which would undermine the 1st Applicant's defence. For that reason, there had been no need for the 1st Applicant's counsel to use, during the 1st Applicant's own case, the vehicle registration book completed by the attendant at the Kwong Fat car park which contained entries showing the simultaneous arrival at the car park of the Saab and the Volvo - entries which seriously undermined the 2nd Applicant's evidence that he had had no contact with Liu Yat Sing since earlier in the day.

52. When the 2nd Applicant gave evidence about the manner in which the 1st Applicant had handled the suitcases when they had been removed from the boot of the Volvo outside the Holiday Inn, that evidence (contrary to what the 1st Applicant's counsel had been led to believe) clearly undermined the 1st Applicant's case that he had not yet agreed to help in the delivery of the consignment and was simply reacting instinctively to the bags being passed to him. Since the evidence relating to the vehicle registration book was evidence which would have been given during the 1st Applicant's case if the 1st Applicant's counsel had been told that the 2nd Applicant would be giving evidence which undermined the 1st Applicant's defence, the judge was right to conclude that the interests of justice required the 1st Applicant to be permitted to call the evidence even though his case had long been closed. It was not rebuttal evidence of the normal kind, because the evidence relating to the vehicle registration book did not rebut that part of the 2nd Applicant's evidence which had undermined the 1st Applicant's defence. It merely undermined the 2nd Applicant's credibility as a witness, and might therefore cast doubt on that part of his evidence which had undermined the 1st Applicant's defence. Accordingly, the rules relating to the limited circumstances in which evidence in rebuttal can be admitted had to be applied in a manner which reflected the very unusual circumstances of the case. In my opinion, the way in which the judge exercised his discretion on the issue cannot be faulted.

53. Secondly, I also agree with Mayo V-P that the trial judge fell into error in relation to the direction which he gave to the jury on lies told by a defendant. Early on in his summing-up, the judge gave the jury the conventional direction about lies told by a defendant. But he did so in the context of a comment which the 1st Applicant had made to the police during his interview. In the present case, that was not enough. The jury had to be told that the direction which it was being given about lies told by a defendant applied (a) not merely to the statements of the defendant to the police following his arrest, but also to his evidence in court, and (b) not merely to the 1st Applicant, but to the 2nd Applicant as well. Moreover, the production of the vehicle registration book at the very end of the evidence was likely to have had a devastating impact on the 2nd Applicant's credibility in the eyes of the jury. Since the credibility of the 2nd Applicant was going to be seriously undermined if the jury thought that he had been telling lies in his evidence about whether he had been with Liu Yat Sing during the day, this was a case in which a direction as to lies had to be specifically tailored to cover those lies.

54. Ms Mary Sin for the Respondent argued that a direction as to lies did not need to relate specifically to such lies as the jury might think the 2nd Applicant had been telling about whether he had been with Liu Yat Sing during the day. That was because the prosecution had not relied on the evidence relating to that issue which had been called on the 1st Applicant's behalf to cast doubt on the 2nd Applicant's credibility. I cannot go along with that argument. In the overwhelming majority of cases, it is the prosecution rather than a co-defendant which is seeking to rely on the lies which a defendant has told. But if a direction as to lies need not be given when it is a co-defendant who is seeking to rely on the lies which a defendant has told, the defendant will run the risk of being convicted because he told a lie rather than because of his guilt. A direction as to lies (where one is appropriate) has to be given, therefore, even when it is a co-defendant, and not the prosecution, which is seeking to rely on the lies which a defendant has told.

55. To the extent that Ms Sin was saying that this was a case in which a direction as to lies was not needed at all - presumably on the basis that the lies in question were determinative of the result of the case - I disagree. Even if the 2nd Applicant had spent the day with Liu Yat Sing, it could still have been the case that he thought that the consignment which was in the boot of his Volvo and which he had agreed to deliver later in the day were industrial raw materials.

The application of the proviso

56. It is in relation to the application of the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap. 221) that I find myself in respectful disagreement with Mayo V-P. In HKSAR v. Chan Ming Fai (CACC 308/2000), I made the following comments at para. 21 about the proviso:

"The proviso represents an exceptional reserve power which enables the court to uphold a conviction, despite a material irregularity in the course of the trial or some defect in the summing-up which may have resulted in some unfairness to the defendant. Since the conviction is nevertheless to stand, the proviso is a reserve power which should be exercised sparingly and with great circumspection. Thus, when dealing with the statutory provision in England on which section 83(1) was based - namely section 2(1) of the Criminal Appeal Act 1968 - Viscount Dilhorne said in Stafford v. Director of Public Prosecutions [1974] AC 878 at p. 893G:

'It is well settled that the Court of Appeal should only apply the proviso to section 2(1) if it is of the opinion that, if the jury had been properly directed, it would inevitably have come to the same conclusion.' (Emphasis supplied)"

Note the reference to "the jury", not some hypothetical jury, but the jury in the instant case.

57. Since the burden was on the 2nd Applicant to prove that he thought that the suitcases contained industrial raw materials, the only basis for applying the proviso in this case is on the footing that the 2nd Applicant's evidence relating to his dealings with Liu Yat Sing was so implausible that, even if the jury had been properly directed, it could not have concluded that his protestations that he thought that he was helping to deliver industrial raw materials were probably true. That would not be a proper conclusion to reach. Two members of the jury must be regarded as having thought that what the 2nd Applicant had said had probably been true - and they believed in the probability of his innocence despite the absence of a direction about how the jury was to approach the question of any lies which the 2nd Applicant may have told about whether he had been with Liu Yat Sing during the day. Where one juror out of twelve dissents from the view of the majority, that may be attributable to that juror taking a maverick view of the evidence. But where two jurors out of seven dissent, it is an altogether different matter. Moreover, the jury returned to court during its deliberations, having requested further directions on what constituted reasonable doubt. To say, therefore, that even if the jury had been properly directed, it could not have concluded that the 2nd Applicant's protestations of innocence were probably true is

(a) to ignore the fact that two members of the jury thought that those protestations of innocence were probably been true,

(b) to ignore the fact that the absence of a direction on the 2nd Applicant's lies as to his dealings with Liu Yat Sing (which so dramatically undermined his credibility as a witness) might well have caused those jurors who convicted the 2nd Applicant to have been much more sceptical of his claim not to have known about the true contents of the suitcases, and

(c) to assume that a proper direction on lies would not have changed the mind of just one of the five other jurors in a case in which the standard of proof was troubling the jury and on which a further direction was sought.

58. I have not applied my mind to the question as to how unlikely the 2nd Applicant's story was. That is because, however absurd and improbable I may think it was, the fact remains that two jurors must be regarded as having concluded that it was probably true. There is no getting away from that, and in those circumstances I cannot discount the possibility that one of the five remaining jurors would have come to a different view as to the probability of his story being true if a proper direction as to lies had been given. If I agreed to the application of the proviso, I believe that I would in effect be denying the Applicant his right to the jury's verdict on the probability of his protestations of innocence, and be replacing whatever view the jury might have reached by my view on the probability of the 2nd Applicant's protestations of innocence. That is not an appropriate use of the proviso, which in the light of its exceptional nature should normally be reserved for cases where the material irregularity in the trial or the defect in the summing-up has been of a technical nature, and which do not turn on the view which the jury may have taken of the credibility of the defendant.

59. For these reasons, I would not have applied the proviso in the present case, and I would therefore have granted the 2nd Applicant's application for leave to appeal against his conviction, I would have allowed his appeal, I would have set aside his conviction, and I would have ordered that the 2nd Applicant be re-tried.

Hon Stock JA:

The case against D1

60. This court is agreed on the approach to the application in A1's case, and on the result of his application, and there is no need to add anything in this regard.

A2: Admitting the Exhibit D3

61. As for A2, we are also agreed that the judge's exercise of his discretion, by which he admitted in evidence the record D3, was unimpeachable. It is not vital for our purposes to determine precisely whether the evidence in respect of which the application was made was rebuttal evidence, strictly so called. The circumstances in which this application came to be made were most unusual. It was not gainsaid that counsel for A1 had had a specific conversation with counsel for A2, in which counsel for D1 was given to understand that nothing would be said by D2 which was going to undermine D1's case. That is not to say that there was some improper understanding; merely that on the instructions which counsel for D2 possessed, D1 had nothing to fear from D2's anticipated evidence. The expectation was, as Mr McGuinneity put it to the judge, that the defendants' cases were that each had been duped by a third party. Mr Tse did not, in the course of, or after, Mr McGuinniety's submissions to the judge contradict what was said. On that understanding Mr McGuinniety sent away, before the conclusion of A1's case, witnesses who had been ready to produce the exhibit 'D3'. Whether it would at that stage have been admissible is another question that one needs not now decide. Be that as it may, the fact is that in his evidence in chief, A2 gave testimony which made A1's role culpable, and was no doubt intended to assist his attempt to distance himself from culpability, and to point to A1 as the buyer; whereas the evidence of the movements of A2 and Liu, as highlighted by exhibit "D3", tended to confirm that A2 had all day long been acting in concert with Liu. It was obviously then in A1's interest to show that A2 and Liu had been acting in concert and that, therefore, if anyone was being duped, it was D1. The premise upon which he had expressly agreed to withhold this evidence was now gone.

62. I am satisfied that the judge had the discretion to admit this further evidence, and that he exercised that discretion correctly.

The non-direction as to lies in the case of D2

63. I am not entirely persuaded that the failure of the judge to give a Lucas direction specifically directed at the lies told by A2 constituted a material non-direction. The fact of the matter is that the jury had its mind drawn to the fact that lies do not prove guilt, and that there may be innocent explanations for lies. In dealing with A1 the jury was told that: "A defendant may lie for a number of reasons other than because he is guilty of the offence with which he is charged", and then a few examples were given; and the jury was told that it was only if they were satisfied that A1 did not lie for an innocent reason that the lie could be regarded as evidence which supported the prosecution case. Then again, later in the summing up, the jury was told that if they found that A1 had lied in court, they were to bear in mind what was said earlier about lies.

64. The reason why lies directions are given is to counteract a natural tendency to assume that lies mean guilt. If that fallacy is put to rest, in the minds of a jury, the judge's task in that particular regard is satisfied. How much needs to be said depends on the case and the issues. I suppose that it might be said, with some force, that given the turn of events in relation to exhibit D3, it was desirable for the judge to remind the jury that a lie in relation to D3 might have some innocent explanation and to speculate what that might be. But the question is whether the omission to repeat the warning in A2's case was material. It is noteworthy that counsel evidently did not think so at trial. It was never there raised. I doubt in the circumstances that the omission can be said to have been material.

65. However, I am prepared to proceed on the assumption that it was, and to address the question of the proviso.

The Proviso

66. There was in this case a non-direction, rather than a misdirection, and the non-direction was constituted by the fact that the judge did not, when he came to sum up A2's case, tell the jury that if they were satisfied that A2 had told a lie about his movements on 25 May 1999, there may be an innocent reason for the lie, such as, for example, that he was merely trying to bolster his defence.

67. Section 83(1) of the Criminal Procedure Ordinance provides as follows:

"Except as provided by this Ordinance, the Court of Appeal shall allow an appeal against conviction if it thinks-

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (Amended 50 of 1981 s. 3)

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

(c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

68. The question whether a case properly lends itself to the application of the proviso to section 83 of the Criminal Procedure Ordinance, assuming that one has need to consider the proviso, is a question which is necessarily case specific. These courts are wont to use the phrase "in all the circumstances of the case" for the obvious reason that many an issue is determined because of the circumstances - all the circumstances - of the particular case. That is also the phrase deliberately used in section 83(1)(a): a conviction is to be set aside if it is 'under all the circumstances of the case' unsafe or unsatisfactory. And it is in this case, when all the circumstances are considered that I feel able to say that despite the omission which has been highlighted in the judgments of Mayo VP and Keith JA, the conviction is indeed safe; but, more pertinently, in light of the evidence and factors to which I shall now refer, I consider that, despite the omission, no miscarriage of justice has actually occurred.

The evidence, and A2's burden

69. In the case of A2, it was accepted on all sides that throughout the day in question, he was in possession of the two containers which housed a very large quantity of drugs. So the issue in his case was whether he knew what was in the containers; whether, as he said, he thought it was industrial raw material, or whether, on the other hand, he knew full well they were full of dangerous drugs. The evidence against A2 was, it seems to me, overwhelming. Pages 55 to 57 of the summing up illustrate how lacking in reality was the defence put forward by A2 and his witness. Both vehicles belonged to A2: that is, the vehicle in which the drugs were kept, unlocked for hours, supposedly entrusted to an innocent man; as well as the vehicle by which the buyer was to be brought to take delivery, at which place we find none other than A2 who actually effected the delivery. The suggestion that Liu would engage an innocent man, to keep and later to carry in the innocent man's own vehicle no less than 29 kilos of 'ice', unlocked, unhidden, with no feasible explanation as to why it was necessary for the innocent party to carry the drugs themselves (rather than, say, transport the buyer) is an inherently incredible suggestion. It was going to be extremely difficult, in the circumstances, for A2 to discharge the burden.

70. In addition, the evidence which convicted A1 was that he opened the bag and examined its contents (in the presence, be it noted, of A2). The jury must have accepted that evidence for, otherwise, in following the judge's directions, they could not properly have convicted A1. Accordingly, they must have rejected A2's evidence that A2 merely handed A1 the small bag, and that all that happened was that A1 lifted it and, with A2's help, the suitcase, out of the car. The conviction of A1 followed a warning by the judge as to effect of A1's lies.

71. In my opinion, it is unrealistic to suggest that a direction as to the effect of A2's obvious lie (about where his vehicle was as 25th May 1999 progressed) might have made a difference to A2's prospects with the jury. Those prospects were, on the most charitable view of his defence, extremely dim. The burden remained throughout on A2 as to his knowledge of what was going on, and the introduction of the exhibit "D3" did not alter that fact. It showed, not merely that A2 had lied, but that both his vehicles were together, one next to the other, from about 10:50 a.m. for several hours, and that both were then driven from those respective positions, one shortly after the other, one to pick up the buyer, A1, and the other driven by A2 with the drugs inside. I would have thought that in those circumstances it became significantly more difficult for A2 to suggest that he knew not what was going on. Yet, and the point is important, he gave no evidence, though he was offered the opportunity to do so, to explain his defence in the light of the new factual scenario. It might be said that it was tactically difficult for him to do so. But since the burden as to knowledge was on him, it was a burden he could not discharge without doing so. It was perfectly open to him to explain the new evidence in the light of his earlier testimony, and to explain his lie, or his mistake, as his case might have been. He did not do so, and it is not only difficult to see how a jury could possibly have believed the earlier defence in the light of the new and unrebutted evidence; but difficult to see how any reasonable jury, following the judge's directions, could properly have decided that the burden on A2 was discharged.

Opposition to the proviso

72. Much is made of the fact that there was in this case a majority verdict, and it is said that we are bound to suppose that the minority regarded A2's account as probably true; and, further, it is suggested that our own views of the defence or of the protestations of innocence, are neither here nor there. I do not, on either count, agree.

(1) The approach to the proviso

73. The question to be addressed is whether the Court of Appeal, that is, this Court, considers that, despite the non-direction as to lies, there has been no actual miscarriage of justice. That being so we are bound, surely, to assess the strength of the evidence, and to assume a jury which is taking a reasonable view of that evidence, and which is properly applying the judge's directions. In the 1992 edition of Archbold, in a discussion of a proviso which was in the same terms as that which we find in section 83 of the Criminal Procedure Ordinance, the editors said:

"... in considering, the most common ground of appeal of all, namely some form of misdirection ... there are now well-settled principles as to when the proviso should be applied. It is not necessary that the Court of Appeal should be satisfied that no jury properly directed could have acquitted the appellant: the proviso may be applied if the Court of Appeal is satisfied that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would have been one of Guilty: R. v. Haddy (1944) 29 Cr.App.R. 182, C.C.A. This test was adopted by the House of Lords in Stirland v. D.P.P. (1944) 30 Cr.App.R. 40, and has been applied by the Court of Appeal in many subsequent decisions."

(Archbold, 43rd ed., Vol. 1, para. 7-46)

An appellate court does not, in my view, properly follow that approach if, having concluded that the evidence is overwhelming and that the defence is unbelievable, or the defence burden not at all discharged, it nonetheless shuts out its own view and concentrates wholly on a view possibly taken by a minority of the jury.

74. The approach adopted by Keith JA concentrates entirely, I respectfully suggest, on the actual jury which tried this case (indeed upon a minority amongst its number) and, to that extent, makes no concession, in my respectful view, to the approach required by the words of section 83 or by the cases. The narrower approach is encouraged, perhaps, by the passage from Stafford v Director of Public Prosecutions which he cites at para.[56] above; a passage which talks of the jury at trial, and which is echoed in R v Chiang Chui Shun [1985] 2 HKC 377, 380-381. However, passages which ask whether the particular jury would inevitably have come to the same conclusion are, in my judgment, not to be read as requiring the appeal court to shut out its own assessment of the evidence, or the assessment it would expect by a reasonable jury properly applying the judge's directions. It was, in my opinion, never intended by the use of such passages to supplant the test of the reasonable jury. The point was addressed as long ago as 1944 when, in Stirland v DPP [1944] AC 315 (HL), Viscount Simon, the Lord Chancellor, said, in relation to a proviso in the same terms as that in section 83 of the our Ordinance, at pages 46-47:

"When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice, and this is the proper test to determine whether the proviso to s.4, sub-s.I, of the Criminal Appeal Act, 1907, should be applied. The passage in Woolmington v. Director of Public Prosecutions (I) where Viscount Sankey L.C. observed that in that case, if the jury had been properly directed it could not be affirmed that they would have 'inevitably' come to the same conclusion should be understood as applying this test. A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. That assumption, as the Court of Criminal Appeal intimated, may be safely made in the present case."

75. This is not to say that the Appeal Court ignores what the actual jury has done, or ignores such indicia as there might be which demonstrate the view they must or may well have taken of certain evidence. It is however to say that the Court of Appeal is not hidebound by an apparent or suggested view by part of the jury no matter how contrary to the evidence that view is shown to be. Nor does the suggestion that the court is wedded to the actual jury, to the exclusion of the hypothetical reasonable jury, accord with experience. Ms Pattenden's conclusion from her researches is that:

"In most cases the Court of Appeal asks only how a hypothetical reasonable jury would have acted in the absence of error, but at times the court tries to assess the impact of the error on the actual jury which tried the accused. The approach taken probably matters little."

(Pattenden, op. cit. page 362)

That the approach is in practice likely to matter little probably stems from the fact that one starts with the assumption that the jury in a particular case is a reasonable jury properly applying the judge's directions. But if there is cause to conclude that the particular jury was, after a correct direction, likely to act wholly contrary to the overwhelming weight of the evidence or to ignore, for example, an obvious failure to discharge an evidential burden, the appellate court can hardly be welded to the approach of the particular jury. If it is shown that an acquittal might have followed, but perversely, then, as Viscount Simon emphasized in Stirland, it is not for this court to endorse that perversion and to ignore the reasonable jury. E fortiori, it should not be assumed that the majority of the particular jury, acting in this court's eyes as a reasonable jury, and in accordance with the weight of the evidence, is likely to be influenced by the minority where there is sound cause to conclude that the desire of the minority to acquit runs contrary to the overwhelming weight of the evidence.

(2) The minority view

76. In any event, I do not accept that we are bound, in this case, to assume that the minority believed A2's account. If it be suggested that they believed A2's account, one is bound to ask: Which account did they believe? A2 gave but one account, but as Keith JA points out in his judgment, "the production of the vehicle registration book ... was likely to have had a devastating impact on the 2nd Applicant's credibility in the eyes of the jury." That being so, and since A2 offered no suggestion at all as to how, despite the new damning evidence, he still remained ignorant of the salient facts, the question then is: What was there to believe?

77. I rather think that the clue to the reservation of the minority lies in one of the questions asked by this jury after their retirement. The question was in the following terms:

"If I believe that D2 possessed the drug and I believe that the police know that D2 is involved in the transaction, can I say that D2 is involved in the trafficking transaction?"

The question rather suggests that this jury was at that stage satisfied that A2 knew what he possessed, but that they were troubled by the police's prior knowledge of his involvement in the trafficking transaction.

Conclusion

78. Factors which tend to influence a court in deciding whether to apply the proviso are suggested, or summarised, in Pattenden's "Judicial Discretion and Criminal Litigation" 2nd Edition at pages 362-363. Each proposition is supported by authority to be found in the footnotes to the text:

"Presented with some fault in the trial the factor which will influence the Court of Appeal's decision whether or not to apply the proviso most seems to be the strength of the evidence against the accused. The Court of Appeal does not like to see an appellant against whom the evidence is overwhelming go free. Other things may be taken into account including absence of an objection by counsel to the error at the trial - this suggests that the accused was not prejudiced - the failure of the jury to agree at an earlier trial, the existence of cumulative error, the length of time the jury was out deliberating on the verdict, possibly whether the verdict was a majority one, and, according to Canadian authority, whether the accused testified at his trial: 'The accused gave no evidence and, while this cannot be commented upon to the jury, it is a factor which must be considered by the Appellate Court. His failure to testify does not prove his guilt, but when the Court is by the statute required to dismiss an appeal unless it is satisfied that there was a miscarriage of justice the failure of the accused to explain in any way facts which place a very heavy onus upon him cannot be ignored.'"

79. I do not suggest that the passage from Pattenden is some checklist to be utilised mechanically in proviso cases. It is nonetheless pertinent to consider the suggested factors in the present case, in particular the strength of the evidence against A2, the absence of objection by counsel to the suggested omission, the absence of any cumulative error, and the fact that A2 gave no evidence to counteract such impact as D3 may be said to have carried. I take into account the fact of a majority verdict and the length of the jury's deliberation but I am satisfied that, when all the evidence and circumstances are considered, notwithstanding that the point raised in this appeal as to the non-direction on lies in the case of A2 might be in his favour, no miscarriage of justice has actually occurred. Whilst, therefore, I would grant leave to A2 to appeal against his conviction, I would, treating the hearing of the application as the appeal, dismiss the appeal.

Hon Mayo VP:

80. By unanimous agreement A1's application is dismissed and by a majority A2's application is allowed and treating it as the appeal it is dismissed.