HKSAR v. YIM SHEK WO

CACC 307/2017

[2021] HKCA 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 307 OF 2017

(ON APPEAL FROM HCCC NO 164 OF 2017)

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R E A S O N S   F O R   J U D G M E N T

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

Introduction

1.  On 21 September 2017, following a trial before Deputy High Court Judge Bruce SC (“the judge”) and a jury, the applicant was convicted of a single count of trafficking in a dangerous drug, namely 5.95 kilogrammes of a powder containing 3.01 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and sentenced to 21 years and 6 months’ imprisonment. 

2.  This is a renewal application for leave to appeal against conviction.  At the hearing of the application, the renewed grounds of appeal were not pursued but instead the applicant advanced new grounds that had been previously filed out of time.  He also requested that he be granted legal aid.  At the conclusion of the hearing, we refused (1) the application by the applicant for a legal aid certificate; (2) the renewal application for leave to appeal his conviction; and (3) an extension of time to apply for leave to appeal his conviction on the new grounds.  Accordingly, we dismissed his appeal.  We said we would hand down our reasons in due course. This we now do.

The prosecution case

3.  It was not disputed that the applicant was the driver of a goods vehicle bearing registration number NY 1278 (“the vehicle”) which was presented at the Cargo Examination Compound at Sha Tau Kok Control Point for examination at 7:33 pm on 27 May 2016.  Inside the tyre on the spare wheel underneath the vehicle, a Customs officer found 12 transparent bags, each containing two transparent bags of white crystalline substance later confirmed by the Government chemist to contain 3.01 kilogrammes of ketamine narcotic with a street value of $779,450.  The prosecution alleged that the applicant had knowingly smuggled the ketamine across the border into Hong Kong from the Mainland for reward.

4.  The examination of the vehicle and the arrest of the applicant was captured on a CCTV camera located at the Sha Tau Kok Control Point.[1]

5.  The prosecution case centred on the applicant’s verbal admission made at the scene to the Customs officer who arrested him, which was later confirmed in writing by the applicant, namely that he had packed the ketamine in the spare tyre himself and “carried it” for a friend across the border from the Mainland for a reward of $20,000.  The applicant was later taken to the Narcotics Bureau at Police Headquarters where he further made full admissions under caution in a subsequent video record of interview.  The case of the prosecution was that the initial verbal admission, the post-record of the verbal admission and the subsequent video record of interview were made entirely voluntarily, and were true.

The defence case

6.  The defence challenged the admissibility of the applicant’s out-of-court statements by way of voir dire.  The basis of the applicant’s challenge was premised on a number of allegations including the denial of certain rights, threats and inducements made by persons in authority in order to obtain his admissions. 

7.  The applicant elected to testify at the voir dire.  He said that when the vehicle was stopped at the Cargo Examination Compound for examination, police officers had approached him and asked where he had put the dangerous drugs.  By that time, the Customs officer had yet to discover the dangerous drugs.  The applicant said the police officers had told him to cooperate and confess otherwise he would be sent back to the Mainland where the authorities would deal with the matter, possibly resulting in the imposition of the death penalty.  He was also feeling unwell and dizzy at the time of his arrest and had a history of asthma and depression.  He requested to see a doctor and a lawyer but this was refused by the police officers unless he cooperated with the investigation.  When the drugs were found in the vehicle, he said he denied that he had anything to do with the transport of the drugs. However, because of the threats and inducements, he made the admissions to the Customs officer who arrested him as coached by the police officers.  He was instructed to say that he was delivering the ketamine for somebody else for a reward of $20,000 and that the rest of the details as to where and when he had collected the drugs he could make up. 

8.  The applicant also testified that he was coached into saying that the drugs were ketamine and the numbers written on the packets of all the drugs represented the weight of the individual packets, which were close to the weights later measured by the Government chemist.  The prosecution, however, argued that the officers would have been taking a risk in dictating what he should say about these matters, since they could not be sure at such an early stage that the drugs were actually ketamine and that those numbers corresponded to the actual weights of the packets. 

9.  The judge having heard evidence from the prosecution and the defence, ruled that the verbal admission, the post-record and the videorecord of interview were made voluntarily.  He declined to exercise his residual discretion to exclude them and accordingly ruled them to be admissible in evidence.

10.  The defence case put forward at trial was that the applicant was an innocent agent between the sender and receiver of the ketamine in question.  He testified that his daily work was to travel to the Mainland in the vehicle with new tyres, which would then be replaced in the Mainland with some used tyres.  He would then drive back to Hong Kong and replace the used tyres with some new tyres and he would routinely make four to five journeys per day.[2]

11.  The applicant contended that on the day of his arrest he was doing his routine runs and he did not know that there was ketamine in the spare tyre of the vehicle.  This was his fourth run that day.[3]  Somebody in the Mainland had therefore placed the drugs in the spare tyre knowing that the applicant would take the vehicle across the border and park it at the usual place for the tyres to be replaced in Hong Kong.  Somebody would then unload the drugs at a convenient time after the vehicle had been parked.

12.  The applicant emphasised that the only reason that he made the admissions of packing and trafficking in the ketamine across the border for a reward was because of the combination of threats and inducements, coupled with the fact that he was feeling unwell at the time.  He testified that he had two pre-existing medical conditions at the time of his arrest, namely depression, for which he received treatment and a prescription of drugs once every 3 months, and asthma which was treated by the use of an inhaler. However, he said he was feeling unwell because he was suffering from flu and feeling dizzy, and his condition was exacerbated by the hot and rainy weather, the proximity of many police officers and the bright lights at the scene.[4] 

The applicant’s appeal

13.  On 28 September 2017, the applicant filed a notice of application for leave to appeal against conviction and sentence.  He also applied for legal aid.  He complained in respect of his conviction that the judge misdirected the jury and showed “serious bias” against him.  On 19 October 2017, he abandoned his appeal against sentence and only proceeded with his leave application against conviction.

14.  The applicant was initially refused legal aid on 27 December 2017 and 20 June 2018, but eventually it was granted to him on 18 February 2019.

15.  On 25 February 2019, the applicant’s counsel at trial, Mr Wong Hay Yiu, was assigned to represent him in relation to his leave application against conviction.

The old grounds of appeal

16.  Mr Wong filed perfected grounds of appeal on 28 March 2019.  There were five grounds of appeal. 

17.  The leave application was heard on 15 October 2019, before a Single Judge[5] who refused to grant leave to the applicant to appeal against his conviction.

18.  Ground 1 complained that the judge should have ruled the verbal admission, the post‑record and the video record of interview inadmissible since his answers had been made involuntarily.  It was argued that the judge in his ruling on the voir dire failed to address and overcome the inherent improbability of the applicant crossing back and forth over the border as stated by him in the interview, which supported his claim that he was coached.  The Single Judge rejected the complaint on the basis that the judge gave a lengthy ruling and as the point was made in submissions about what the applicant had said of his trips to and from the Mainland he would have had the point in mind.  He added the judge could not be expected to address every point that was made and that this particular point did not seem significant.

19.  Ground 2 complained that the judge made sarcastic remarks in his summing-up, which were tantamount to inviting the jury to reject the applicant’s evidence.  It was also complained that the judge’s summing-up was unbalanced and amounted to a point-by-point rebuttal of the defence case.  The Single Judge noted that comments referred to under this ground were not as suggested by Mr Wong.  The judge made legitimate and appropriate comments in respect of the evidence and the issues, and when properly viewed they did not undermine or detract from the defence case. 

20.  Ground 3 complained that the judge’s direction in respect of the Fugitive Offenders Ordinance was uncalled for and that it amounted to inviting the jury to reject the applicant’s evidence that he was threatened by police officers.  It was further complained that the direction would also have misled the jury into thinking the evidence of the police officers was more credible than that of the applicant.  It was argued that as a consequence the judge’s directions on extradition reflected adversely on the applicant.  However, the Single Judge held that the judge had simply addressed the law in respect of extradition, and the jury were entitled to be told what the law was in Hong Kong as it was a matter raised in the course of the trial. More importantly, the judge had made the point to the jury that the applicant may not have known the law and that what he believed about the threat of being sent to the Mainland was what mattered.

21.  Ground 4 complained the judge failed to give a special direction on the drawing of inferences which should have been tailored to the circumstances of the case and specifically set in the context of the evidence and the arguments.  The Single Judge found that the judge had given the correct direction in accordance with the specimen direction in jury trials promulgated by the Hong Kong Judicial Institute.  He had also addressed the issue of inferences throughout his summing-up when required.

22.  Ground 5 relied on the previous grounds of appeal to complain that the conviction was unsafe and unsatisfactory.

23.  The Single Judge having rejected all of these grounds on the basis that they were not reasonably arguable, we were also satisfied that the grounds were without merit.

24.  On 22 October 2019, the applicant filed a notice to renew his application for leave to appeal in relation to these grounds.

25.  The applicant twice applied for legal assistance to the Clinical Legal Education Unit at the University of Hong Kong, which were refused on 20 November 2019 and 18 May 2020, respectively.

26.  On 4 May 2020, a letter dated 24 April 2020 was received by the Court from the applicant, in which he asked for his renewal application to be adjourned as Mr Rurik Jutting, a fellow inmate, had reviewed his papers, and was of the opinion that grounds of appeal were available that had not been previously taken by his counsel.  Mr Jutting said he would draft grounds and submissions to be used for the hearing of the renewal application for leave to appeal and to obtain legal assistance. The applicant asked that the renewal application be put off for 3 months to enable Mr Jutting to research and prepare his case.  His application was refused by the Court, which was conveyed to him in letters dated 7 and 15 May 2020.

27.  At the renewal hearing on 22 May 2020, the Court[6] received from the applicant a bundle of documents written by Mr Jutting, which included five pages of new homemade grounds of appeal against conviction.[7]  The applicant requested the hearing be adjourned so that he could reapply for legal aid.  The last minute filing of new grounds of appeal resulted in the hearing being adjourned.  A mention hearing was fixed for 17 July 2020.

28.  On 3 July 2020, the applicant’s renewed application for legal aid was refused. 

29.  At the mention hearing on 17 July 2020, the Court[8] inquired about the circumstances that led to the last minute filing of the new grounds of appeal by Mr Jutting.  The Court expressed its grave disquiet at the late and last-minute filing of the new grounds of appeal and submissions, and the serious disruption it caused to the court proceedings both specifically and generally.  The application was adjourned to be fixed for hearing.

30.  The new grounds of appeal were filed out of time on 22 May 2020.  This involved a delay of about 2½ years and no explanation had been provided for this inordinate delay.

31.  On 3 December 2020, the applicant’s application for assistance from the Bar Free Legal Service Scheme was refused.  In light of the allegations of flagrant incompetence of the applicant’s legal representatives at trial contained in his new grounds of appeal, the applicant and the legal representatives were given time to file their sworn evidence. 

32.  It is to be noted that prior to the hearing of the renewal application it had not been made clear by the applicant as to which of the original grounds of appeal, if any, he sought to rely on.  It was only at the hearing that he confirmed he was not pursuing the old grounds of appeal in the renewal application.  This left only the new perfected grounds of appeal. However, as we have pointed out the new grounds of appeal were out of time and it was on this basis that we addressed them.

The new grounds of appeal

33.  There were five new grounds of appeal. 

34.  Grounds 1A and 1B complained that the legal representatives at trial were flagrantly incompetent for failing to produce at trial any medical evidence pertaining to the applicant’s pre-existing mental disorder (Ground 1A), which was relevant to both the voluntariness (or involuntariness) of the admissions and the permissible extent of inference that the jury might draw from his behaviour upon arrest.  The failure to produce such medical evidence accordingly rendered the conviction unsafe (Ground 1B).    

35.  Grounds 2A and 2B complained that the defence was deprived of a fair opportunity to defend its case without knowing the specific contents of “intelligence” or “information” (that is, the applicant would be bringing 6 kilogrammes of ketamine into Hong Kong) to which the law enforcement authorities were privy.  It was said that this was imputed not only to a breach of the prosecution’s duty to make full disclosure (Ground 2A), but also the flagrant incompetence of the defence team in that they failed to seek full disclosure from the prosecution (Ground 2B).

36.  Ground 3 complained that the jury was not sufficiently directed as to the issue of voluntariness (or involuntariness) at the time of the applicant making the admissions.  In particular, it was argued that the jury should have been warned against treating the content of the declaration in the applicant’s post-recorded statement as supporting evidence of voluntariness.  

The fresh evidence

37.  For the purposes of the complaint about the flagrant incompetence of the legal representatives, the following evidence was filed with the Court. 

38.  According to the applicant in his first affirmation,[9] before the trial was concluded, he had instructed his legal representatives, Mr Wong Hay Yiu, trial counsel, and Mr Tsang Hon Wai, the instructing solicitor, to obtain the CCTV footage showing the search process on 27 May 2016 as well as his medical records showing his mental condition at and prior to his arrest,[10] telling them also that he was dizzy, weak and unwell at the material time.[11]  Whilst the requested CCTV footage and medical record, dated 28 May 2016, were subsequently obtained,[12] he was advised that his psychiatric records could not be obtained and were, in any event, “of no assistance, no use”[13] since a “mental problem is not a defence to trafficking in a dangerous drug.  Therefore, the psychiatric records were of no use in the case.  He believed he only mentioned that he suffered from depression.”[14]  

39.  The applicant also stated that he discussed with his lawyers at an early stage that the Customs officers and the police carried out the operation based on information.  He remembered seeing among the unused material a police officer’s notebook which showed that the operation was based on information, although he claimed he never saw the “exact details”.[15]  He said that at his trial he asked Mr Wong whether the information could be used for his evidence.  Mr Wong told him he would ask the prosecution witness some questions about the matter but he did not expect they could answer the questions and he did not think that it would be of any use to his defence.[16] 

40.  The applicant sought to adduce a psychiatric report dated 26 June 2018, compiled by Dr Wong Ho Hon, a specialist in psychiatry of Yung Fung Shee Psychiatric Centre in United Christian Hospital, which was requested by the applicant on 29 March 2018.  We considered the report on a provisional basis.  It stated that:

“Mr. YIM was first seen at our center on 18 July 2014 upon discharge from Siu Lam Psychiatric Center (SLPC). He complained of low mood, crying spells and poor sleep, rumination on cleanliness with sense of hopelessness and helplessness upon discharge from SLPC and missing his girlfriend. He was initially diagnosed to have adjustment disorder with obsessive-compulsive features. He was prescribed psychotropic and was referred for community support and activities.

His diagnosis was revised to alcohol dependence and depression with comorbid obsessive compulsive disorder in 2015. He was referred to clinical psychologist for psychological intervention but patient defaulted the session on 25 June 2015.

Mr. YIM defaulted follow-up for about one year and he resumed follow-up and treatment since 23 June 2016.  He reported his psychiatric symptoms subsided upon follow-up on 26 October 2017 and requested to stop medication.  Medication was stopped since 26 October 2017. He was noted to be mentally stable upon follow-ups and he was last seen on 10 May 2018.” 

41.  The applicant argued that the psychiatric report went to the issues as to (i) whether his out-of-court admissions were made involuntarily; and (ii) whether the only reasonable inference could be drawn from his behaviour during the search of the vehicle was that he realised the drugs were about to be found.[17]

42.  According to Mr Wong in his affirmation,[18] he accepted that the applicant had instructed him that he had been treated for depression (as distinct from any other psychiatric problems[19]) quite a long time prior to the arrest; and that at the time of his arrest, he had already defaulted treatment for almost a year, but was only feeling unwell because he had flu and was feeling dizzy.[20] He did not tell him that the reason why he was unwell was because of his psychiatric problem.[21]  He said that had the applicant told him that at the material time, and that he still had to take a prescription drug for his psychiatric problem, “I would have followed that up and specifically included that in the grounds of objection.”[22] 

43.  Mr Wong denied advising the applicant that a mental problem was not a defence to the offence in question.  He told him it was of no use to his defence that he was an innocent agent and unaware of the drugs in the tyre.[23]

44.  Finally, Mr Wong said they discussed the information, after which he could not see why the details of the information would be relevant.  He felt at most the police officers could only believe the drugs were ketamine and the point that would be made against the applicant was that the police would be unlikely to risk coaching the applicant that the drugs were ketamine if they turned out to be some other drugs.[24]

45.  Mr Tsang in his affirmation,[25] echoed what was stated by Mr Wong and added that no definite instruction was ever given by the applicant that his psychiatric records should be obtained;[26] nor did he tell the applicant that such records could not be obtained, although he might have told him that there was no need to obtain them.[27]  

46.  The applicant in a second affirmation,[28] responded by acknowledging that his recollection might have been inaccurate and the version of events recalled by his legal representatives should prevail in case of significant discrepancies between them; accepting also that he might have forgotten to tell Mr Wong he was on psychiatric medication at the material time.[29] Nevertheless, he maintained that he had on more than one occasion pointed out to Mr Tsang that there might be a need to obtain his psychiatric records.[30]   He also maintained his complaint that the prosecution seriously violated its duty of disclosure in respect of the information.[31]

The respondent’s submissions

47.  In respect of Grounds 1A and 1B, Mr Derek Lau, for the respondent, submitted that it did not appear that the applicant had given clear instructions to his legal representatives to obtain his psychiatric records.  He submitted that even assuming clear instructions were given, it would have been open to counsel to make a tactical decision not to obtain the psychiatric records as it would not have materially advanced the defence case. In any event, a voir dire was held to challenge the admissibility of his admissions, although not quite on the same basis which the applicant seemed to advance in the renewal application.  The challenge was continued at trial.  The applicant gave evidence about his depression and the judge summarised his evidence to the jury.  The applicant testified that he suffered from depression for which he would receive treatment and “a prescription of drugs once every 3 months.”  However, this was contrary to the medical report, in which it was stated that he defaulted in his treatment about a year prior to his arrest.

48.  Mr Lau also opposed the production of the psychiatric report, on the basis that the applicant’s conviction was neither unsafe nor unsatisfactory even without the psychiatric report being produced at trial.

49.  In respect of Grounds 2A and 2B, Mr Lau pointed out that, prior to the trial, the defence had acknowledged receipt of a bundle of unused prosecution materials,[32] which included amongst other things, the notebook entries of Detective Senior Inspector Charm Kiu Kwong (DSI Charm),[33] which recorded details of information received by the police that the applicant would be transporting 6 kilogrammes of ketamine from the Mainland into Hong Kong in his light goods vehicle.  He contended that there could be no complaint against the legal representatives at trial for not making use of the information in question, in light of the defence case that was advanced by the applicant that he was coached by the police to admit committing the offence.

50.  In respect of Ground 3, Mr Lau submitted that once the impugned direction was considered in the context of the prior direction that the jury should first consider whether the admissions were or might be obtained by any improper conduct of the police,[34] there could be no complaint that the jury might have been misled into thinking that they could solely rely on the content of the declaration of the post record to conclude that the admission was true without considering whether it was made voluntarily.

Discussion

51.  In R v Wong Kai Kong & Anor,[35] it was held that in considering whether leave should be given to appeal out of time, a court will take into account: (i) the length of the delay; (ii) whether the applicant has a reasonable explanation for the delay; and (iii) whether sufficient grounds of appeal are shown.  In determining whether to grant leave, it was open to the court to look at the grounds of appeal to check that by refusing leave to appeal, it was not shutting out a substantial and plainly arguable ground of appeal. 

52.  The applicant’s explanation for the inordinate delay in filing his new grounds of appeal was that it took time to find someone to look at his case.  The new grounds raised matters that the applicant would have been aware of at an early stage and could have been pursued when he first sought to appeal his conviction, which essentially concerned the failure of his legal team to obtain his psychiatric records; the disclosure and use of the information that led to his arrest; and the judge’s direction on the applicant’s post-record.  There was also the additional factor that the applicant had to concede in his second affirmation that he incorrectly recalled certain events and that the recollection of the legal representatives at trial should prevail.

53.  The procedural time limits to apply for leave to appeal are imposed for good reason and therefore “substantial grounds must be shown for the delay” before an extension of time is granted.  It is well-settled that the longer the delay, the more onerous is the duty on the applicant.  No reasonable account had been given by the applicant of what, if anything, was done about these new grounds prior to seeking the assistance of someone after his case had concluded more than two years ago.  The delay was considerable, and the explanation was unconvincing.

Grounds 1A and 1B

54.  In Grounds 1A and 1B, it was alleged that the applicant’s legal representatives at trial failed to adequately investigate and deploy psychiatric evidence relating to the applicant’s pre-existing mental conditions of alcohol dependence and depression, which were said to be relevant to his defence. 

55.  The applicant in his first affirmation stated that he requested his lawyer to obtain his psychiatric records before the trial commenced.  He claimed that he had explained to his lawyer that he was feeling unwell at the time of his arrest and it was probably attributed to his psychiatric problem because he had not taken his prescription drug for his depression.

56.  The applicant’s trial counsel, Mr Wong, stated in his affirmation that he was never told by the applicant that the reason why he was unwell at the time of his arrest was attributable to a psychiatric problem, nor that he had to take prescription drug due to his depression.  He said that the applicant only mentioned that he had previously been treated for depression, but had defaulted treatment nearly a year before he was arrested.[36]  

57.  Mr Wong’s account is supported by the medical report of the applicant, in which it is recorded that he defaulted in attending follow up treatment for about a year before he resumed treatment on 23 June 2016.  This was after the commission of the present offence on 27 May 2016. 

58.  Mr Wong also stated that it was only after the trial commenced that the applicant asked him if his psychiatric records should be obtained.  Significantly, the applicant did not mention to him having suffered from any psychiatric episode at the time of his arrest.

59.  It is important to bear in mind what was in issue at the trial.  The prosecution case was that the applicant knowingly smuggled the drugs into Hong Kong hidden in the spare tyre of his vehicle.  The prosecution relied on the admissions made by the applicant at the time of his arrest and in a subsequent video record of interview, in which he said he smuggled the ketamine across the border on behalf of a friend for a reward of $20,000. 

60.  The defence case was that the applicant was an innocent agent and was not aware of the existence of the drugs in the tyre.  He alleged that he was threatened and induced to make the admissions and that at the time he was unwell mainly because he was suffering from flu.  In light of the defence case, Mr Wong considered that the psychiatric records of the applicant would be of no use to his defence.  He explained that had the applicant mentioned that he still needed to take a prescription drug for his psychiatric problem he would have followed the matter up and specifically included it in the grounds of objection to the admissibility of the out-of-court statements.  He stressed, however, that the applicant’s instructions were that he was not feeling well throughout the day of his arrest because he was suffering from flu and was feeling dizzy.

61.  After considering the affirmation of Mr Wong, the applicant in his second affirmation acknowledged that his recollection of events was not entirely correct.[37] He stated that he only mentioned depression to counsel and it was very likely that he had forgotten to tell him that he still needed to take a prescription drug at the material time.[38]  He also acknowledged that in his discussion with counsel he focused on the other possible reasons why he was unwell at the time of his arrest, such as suffering from flu, the weather and the bright lights at the scene.  He claimed he told counsel that he was unwell also because of his depression.[39]  However, he could not remember clearly the details of his instructions to counsel about taking a prescription drug for his depression.[40]

62.  In light of the foregoing, there was no substance in the applicant’s complaint that his legal representatives failed to adequately investigate his pre-existing mental conditions.  The applicant only mentioned to his legal representatives that he suffered from depression and that the main cause for why he was feeling unwell, namely being unsteady on his feet and sweating, was because he was suffering from flu, as well as the hot weather and the bright lights at the scene.  It is plain that Mr Wong presented the defence case in accordance with the applicant’s instructions bearing in mind the basis of the challenge of applicant’s out-of-court statements.  As it transpired, the medical report would have provided very little support, if any, for the defence case and possibly could have been used to contradict the evidence of the applicant.  It also appears that no real issue was taken by the prosecution that the applicant suffered from depression.

63.  For the following reasons, we found no merit in these grounds.  First, there were no clear instructions given by the applicant to his legal representatives to obtain his psychiatric records, nor did he instruct them that he suffered from a psychiatric episode at the time of his arrest.  In the circumstances, it could hardly be said that the legal representatives failed to act on the applicant’s instructions. 

64.  Secondly, it was within counsel’s discretion to make a tactical decision as to whether or not to obtain the psychiatric records in light of the defence case.  See Chong Ching Yuen v HKSAR.[41] 

65.  Thirdly, not obtaining the psychiatric records did not have any material impact in the conduct of the applicant’s defence.  He testified that at the time of his arrest he had two pre-existing medical conditions.  He said he suffered from depression and asthma.[42]  In accordance with the instructions he gave his legal representatives, the applicant’s evidence was that he was feeling unwell at the time of his arrest because he was suffering from flu and this was exacerbated by the hot and rainy weather and the bright lights at the scene.[43] It was also apparent from the medical report that there was no real support for the applicant’s contention that his mental health contributed to him feeling unwell at the time of his arrest.  As already noted, the applicant had defaulted in his treatment session on 25 June 2015, and did not resume until after he was arrested for the present offence.  It appeared therefore that the medical report in respect of the applicant was unlikely to have any material bearing on the issues at trial. 

66.  Fourthly, the applicant’s case that he was feeling unwell at the time of the arrest, and the reasons why, were fully advanced on his behalf in order to challenge the voluntariness of the out-of-court statements.

67.  We considered that these grounds did not fairly accord with the applicant’s case as presented by him to his legal representatives, nor with the evidence and issues at trial. 

Grounds 2A and 2B

68.  In Ground 2A, it was complained that the prosecution failed to disclose to the defence “the specific contents” of the “intelligence” or “information” upon which the authorities acted when they intercepted the applicant’s vehicle on 27 May 2016.  It is contended that the prosecution breached its duty of disclosure because of the following matters: (i) the assertion by prosecuting counsel in his closing address that no one knew the drugs were ketamine, except the applicant;[44] (ii) the judge’s suggestion that the figure “253” written on each of the packets of drugs represented its weight was something of “a lucky guess” on the part of the police as if they were providing a script;[45] and (iii) the judge’s remarks in his summing-up which assumed the police did not know all about the case from their prior “intelligence” or “information” but needed to further investigate it.[46]

69.  It was accepted by the applicant that it had been established from the evidence in the voir dire that the applicant’s interception had been based upon prior “intelligence” or “information”.[47]  However, it is complained that without knowing “the specific contents” of the information, the defence was unable “to counter or neutralise” the matters mentioned above.

70.  It was also complained in Ground 2B that the defence legal team were flagrantly incompetent in failing to take adequate steps to obtain “the specific contents” of the “intelligence” or “information”.  It is argued that the defence had been put on notice during the voir dire that the prosecution would rely on the assertion that nobody knew it was ketamine, except the applicant.[48] It is further argued that defence counsel sought to persuade the jury that the police were acting on specific information and made the applicant make admissions consistent with that information,[49] despite not knowing “the specific contents” of the information.  However, the point was made by the applicant in his written submission:

“Of course, it is hypothetically possible that, having obtained this material or information from the prosecution, defence counsel may – at that point – have made the considered tactical decision to decline to deploy it. However this is entirely beside the point: to get to the stage of making a considered tactical decision, defence counsel first needed to know of what the police ‘intelligence’ or information actually comprised.”[50]

71.  As already noted, the information was that the applicant was transporting 6 kilogrammes of ketamine in his vehicle from the Mainland into Hong Kong.  The applicant said in his post-record that the drugs were ketamine and later in his video recorded interview he explained that the figure “253” on the packets represented the weight of the drugs. The defence case was that the police gave the applicant a “storyline” to tell the Customs officer, namely that for $20,000 he was delivering the ketamine for someone else and the figure “253” on the packets stood for the weight of the drugs.[51]  He was also told to improvise the rest of the story but not to give details that could be checked.[52]

72.  The prosecution in response to the allegation of coaching made the point that the officers, while suspecting the “white crystalline substance” was ketamine, would not have known for sure that it was ketamine until it was examined by the Government chemist.[53]  It was also submitted by the prosecution that the applicant was the only one who knew the drugs were in fact ketamine.  The defence on the other hand submitted that the police officer who allegedly coached the applicant, with his experience, would have known what ketamine looked like.[54] This was addressed by both counsel in their closing addresses to the jury, which the judge mentioned in his summing-up for them to consider and resolve.

73.  Given that the “intelligence” or “information” was disclosed to the defence and that defence counsel had made an assessment of the forensic value of the information, it put paid to the complaints made under this ground.  The information was contained in the relevant notebook entries of DSI Charm.  As there was no failure to disclose the information, the complaint under these grounds fails.  Furthermore, there was no basis on which to complain that the applicant was deprived of a fair trial by not being able to make use of the information.

74.  As acknowledged by the applicant himself, he recalled seeing in the unused material a record that the police were acting on information in respect of his arrest.[55]  He also testified that the police told him that they had information that there were drugs in his vehicle.[56]  It was also confirmed by Mr Wong that he discussed the matter with the applicant as to whether it would be relevant as part of the defence case.[57]  In fact, Mr Wong referred to the information in his oral submissions in the voir dire.[58]  Accordingly, the information was neither undisclosed by the prosecution, nor unknown by the defence.

75.  We note that the point about the applicant stating it was ketamine to the Customs officer was but one aspect of the issue as to whether the out-of-court statements of the applicant were voluntary and true, or as put by the defence, involuntary and untrue.  The jury had the benefit of CCTV footage of the inspection of the vehicle and the arrest of the applicant, as well as evidence from relevant officers and the applicant, and the exhibits of the post-record and the video recording of the interview with the applicant. 

76.  The allegation by the applicant that he was coached by the police as to what to say to the Customs officer was addressed by the judge in his summing-up.  He also mentioned prosecuting counsel’s response in his closing address that the officers would be “taking a bit of a risk” about coaching the applicant to say it was ketamine because it might turn out to be some other drug.  The judge told the jury that this was a matter that they had to consider.  He also pointed out that no allegations had been made against the Customs officers and if the applicant’s version was correct the police officer’s performance was disgraceful.[59]

77.  The judge went on to address the allegation of coaching prior to the video record of interview that the applicant was told by police that the figure “253” on each packet represented the weight of the drugs.  In the video record of interview, the applicant was shown 12 bags (each bag contained two packets) and asked the following questions:

“131. A : … What do you want to say about these 12 bags, (about) these suspected dangerous drugs?

132. C : I have none -- nothing to say.

133. A : Well, well, ‘253’ is marked with the package of each bag of dangerous drugs.

134. C : Yes.

135. A : I would like to ask (you) what (it) means.

136. C : Er- as far as I know, (it) should be the weight.

137. A : Who wrote the words on (them)?

138. C : Er- No idea. Because when (I) got (them), -- when I collect (them), the numbers were already there.”[60]

78.  The judge went on to note that prosecuting counsel had calculated the figure “253” multiplied by 24 was 6,072, which he said was close to the quantity of the mixture of 5.95 kilogrammes.[61] He then said to the jury:

“Now, whether that was schooled by the officers or said by the accused of his own free will is something you will have to determine. But you might think it was something of a lucky guess on the part of the police if they were providing the script as far as that is concerned.”[62]

79.  We did not consider the judge’s comment of “a lucky guess” to be a material matter.

80.  The applicant also complained about the judge’s comments that the applicant was supposed to improvise the rest of the story and that the details should be uncheckable, and that implicit in that was that the police officers “having made an arrest and having got the drugs and an admission from the driver, did not want to go to the trouble of investigating the matter any further.”[63]

81.  It was argued by the applicant that this suggestion by the judge was premised on the assumption that the police did not already know all material information about the case from their prior “intelligence” or “information” but rather had matters which required further “investigating”.[64]

82.  We found this argument rather fatuous.  Firstly, the “intelligence” was disclosed, and revealed that information had been received about the smuggling of drugs by the applicant.  The information alone would not have been a sufficient basis to prosecute a case against the applicant, and therefore require further investigation.  Secondly, it defies the ordinary meaning of what the judge said. 

83.  The issue of the police acting on information in respect of the apprehension of the applicant was before the jury and mentioned by the judge in his summing-up to them.  He told the jury not to speculate about the quality of the information, nor hold it against the applicant.  However, he reminded them that it was part of the applicant’s case that the police were trying “to fit” the applicant “into their story”.[65]

84.  We found these grounds of appeal devoid of merit.

85.  The conduct of a defence case by counsel in a criminal trial is not an easy task.  To allege that defence counsel was incompetent, it must be shown that the incompetence was flagrant.  It is not a question of whether things might have been done or argued differently.  The ultimate question for a court is whether the conduct complained of has resulted in the defendant not getting a fair trial so that the conviction is unsafe or there is a miscarriage of justice.  It is easy to be critical of defence counsel’s conduct without having lived and experienced the dynamics and issues that confront him or her in defending a case as it progresses.  This is not to say errors are not made, but it would be a mistake to view critically defence counsel’s conduct without a full appreciation of the case and an understanding of the tactical issues and decisions in presenting a defence.  Finding a mistake is of little or no utility unless it is material and will have a bearing on the ultimate result of the case.  It is not uncommon for a complaint to be made about the conduct of defence counsel which at first sight appears to have some significance, but when viewed in sharper focus and in context the converse turns out to be true. We make these remarks because we are concerned that when an appeal is conducted on the basis of a review of what has been done by the legal representatives for the defendant at trial, the Court is only given a selective view of what has taken place, or as often happens, a different and alternative view of how the case should have been argued or presented.

86.  To illustrate the point, we note that in the present case the applicant accused the police officers of lying and framing him for the offence.  As a result, the applicant was at risk of losing his shield and having his previous criminal convictions put before the jury if he were to give evidence in his defence.[66] The applicant had prior convictions for drug offences, his last conviction was in March 2011 for trafficking in a large quantity of ketamine for which he was sentenced to 6 years imprisonment, having pleaded guilty.[67]  In making his allegation of flagrant incompetence of counsel, the applicant had waived legal professional privilege.  We have not been provided with the applicant’s full instructions to defence counsel and how it was decided that the defence case would be run before the jury.  However, the issue of the applicant’s knowledge of or familiarity with the drug of ketamine was obviously something that defence counsel had to carefully navigate around in presenting the defence case.  The applicant gave evidence in his defence, but there appears to have been no application by the prosecution to put the applicant’s criminal record before the jury.  Whether this had a bearing on how the defence case was run, we do not know.  But it does highlight the fact that there are often matters which defence counsel have to take into account that may have a specific or general bearing on how the defence case should be presented.  It also highlights the danger of considering a matter in isolation without an in-depth and extensive appreciation of the defence case as a whole.

Ground 3

87.  In Ground 3, it was complained that the judge erred in law in his direction about the voluntariness of the applicant’s statement in his post-record, where he said:

“And there is an assertion in that document, as you know, and I strongly invite you to review it in due course. He says it is voluntary and true.”[68]

It was submitted that the judge’s remarks wrongly implied to the jury that the statement was voluntary and probative of the issue of whether the statement was made by the applicant voluntarily.

88.  The impugned comments of the judge had been taken out of context and when read in their full and proper context, not only was there no substance to this ground but it was positively misleading.  The relevant passage of the judge’s summing-up read:

“Now, as I say, the case for the accused is that that is untrue. He says the Narcotics Bureau, through a combination of threats, promises, inducements and other misconduct persuaded the accused against his will to say what he said to the Customs Officer and persuaded him to sign the written acknowledgement of the verbal admission. The threats and promises and inducements continued until before the video-recorded interview early the next morning. The accused says that the content of what he said to the Customs officer and later acknowledged in writing was the subject of coaching on the part of various police officers, and what he said and acknowledged was in effect a prearranged script of what was added against his will and was the product of all of that misconduct.

In deciding whether you can safely rely on those admissions you must decide whether you are sure that the admissions are true. That is the issue for you. In addressing the issue of whether the admissions are true, you will have to decide whether they were, or may have been, made or given as a result of the threats, promises, inducements and misconduct. If you conclude that the admissions were or may have been obtained by those threats and promises and misconduct which the accused attributes to various officers of the Narcotics Bureau, and the accused was or may have been saying or writing what he has said to have written as a result of those inducements and threats and promises, then just ignore the admissions.

However, if you are sure that the accused may the admissions and they were not obtained in that way, you must nevertheless come to the vital question which you would have to consider about those statements, are they true. If you are not sure, disregard them. If, on the other hand, you are sure that they are true, you may rely on them. And if they are true, they are a complete admission to each element of the offence of trafficking in dangerous drugs. If you consider the admissions are true as to what the accused admits and that he was in possession because he knew it was in the spare wheel underneath his car and it was under his control and he knew what the drug was and the purpose of doing what he did was to drive across the border, then that is a complete admission.

To determine those issues you have to look at what the accused said to the Customs officer, what he acknowledged by signing in the notebook of the office to be an accurate record of what he said and also you look at the video which was recorded later. There is no dispute about what was said. There is no dispute he signed the notebook as an acknowledgement. And there is an assertion in that document, as you know, and I strongly invite you to review it in due course. He says it is voluntary and true.

Now, also I strongly ask you to review carefully what he said in the video-recorded interview. You can do that in a multitude of ways as you know. And of course you will have to bear in mind what was said by the accused in this regard, and I will come to that later in the summing-up.”[69] (Emphasis added)

89.  When the italicised remarks, the subject of this ground, are read in their full and proper context it was clear that the judge was merely inviting the jury to review what has been declared by the applicant in the post-record in light of the defence case that he made and signed the post-record as a result of threats and inducements.  The underlined remarks illustrated that the judge was directing the jury’s attention to consider the defence case on this issue.  By the italicised remarks, the judge was actually inviting the jury to review what appeared on its face to be voluntary and true, but which the defence were submitting was involuntary and untrue.

90.  The post-record concluded with the statement that “I have made it on my own free will”.  It was further argued that in order for the jury to rely on the truth of the assertion that the applicant made the statement of his “own free will”, the jury first needed to be sure that the signature had been made by the applicant voluntarily.  It was submitted absent such finding, the post-record amounted to nothing other than a bare assertion by the Customs officer who recorded it because it had been neither acknowledged, nor authenticated by the applicant and therefore could not be relied upon by the jury for any purpose.  This argument was totally misconceived and ignored the defence case at trial that whilst the applicant made and signed the post-record he did so as a result of threats and inducements.

91.  There was no question that the voluntary character of the applicant’s signature on the post-record was challenged by the applicant.  The defence case was that the applicant signed the post-record because of threats and inducements by the police officers.  We found that the judge was inviting the jury to consider whether the applicant voluntarily signed the post-record and made the admissions contained therein.  He was not directing that they should consider, without question, that the applicant voluntarily signed the post-record.  He presented both sides of the argument on this issue to the jury.  The prosecution submitted the applicant voluntarily signed the post-record, while the defence submitted it had been signed involuntarily by the applicant.  There was, in our view, no doubt that was how the jury understood the issue between the parties.

92.  We found no substance at all in the complaint under Ground 3.  The issue of the voluntariness of the applicant’s out-of-court statements was fairly and properly put before the jury to consider, and more importantly, it was put in a manner that was entirely consistent with the defence case.

Conclusion

93.  It follows from what we have said that we were not satisfied with the explanation given by the applicant for the inordinate delay in filing the new grounds of appeal.  We nevertheless considered the grounds but found there was no merit in them. We refused to grant the applicant legal aid and an extension of time to file an application for leave to appeal on the new grounds.  Accordingly, we dismissed the appeal against conviction.

[1] Photographs 1 to 33, Appeal Bundle (AB), 107-126.

[2] AB, 20I-K.

[3] AB, 23F.

[4] AB, 14B-O.

[5] Macrae VP.

[6] McWalters, Zervos JJA and Wong J.

[7] The bundle of documents also included a 13-page written submission entitled “Notes on Applicant’s pre-existing mental disorders and relevance thereof” and a psychiatric report dated 26 June 2018 under cover of letter dated 29 June 2018.  

[8] Macrae VP, McWalters and Zervos JJA.

[9] First affirmation of the applicant dated 4 August 2020.

[10] Ibid., [7(i)-(ii)].

[11] Ibid., [8(i)].

[12] Ibid., [9].

[13] Ibid., [10] and [12].

[14] Ibid., [12].

[15] Ibid., [15] and [16].

[16] Ibid., [17].

[17] See the applicant’s “Notes on Applicant’s pre-existing mental disorders and relevance thereof”, at [16].

[18] Affirmation of Mr Wong Hay Yiu dated 29 September 2020.

[19] Ibid., [7].

[20] Ibid., [4] and [5].

[21] Ibid., [5].

[22] Ibid., [5].

[23] Ibid., [6].

[24] Ibid., [8].

[25] Affirmation of Mr Tsang Hon Wai dated 29 September 2020.

[26] Ibid., [3].

[27] Ibid., [6].

[28] Second affirmation of the applicant in reply dated 21 October 2020.

[29] Ibid., [4] and [12].

[30] Ibid., [15(i)].

[31] Ibid., [14].

[32] See the Acknowledgment of Receipt dated 6 July 2017 (Tab 3 annexed to the respondent’s submissions) and the Index to the Bundle of unused materials (Tab 2 annexed to the respondent’s submissions).

[33] See Tab 1A annexed to the respondent’s submissions.

[34] AB, 13B-D.

[35] R v Wong Kai Kong & Anor[1990] 1 HKC 279.

[36] Affirmation of Mr Wong, at [5]. 

[37] Second affirmation of the applicant, at [4].

[38] Ibid., at [11] and [12].

[39] Ibid., at [8] and [13].

[40] Ibid., at [12].

[41] Chong Ching Yuen v HKSAR(2004) 7 HKCFAR 126, at [47] and [48].

[42] AB, 19L-S.

[43] AB, 25P-26A.

[44] AB, 223N-P.

[45] AB, 27N-O.

[46] AB, 27P-S.

[47] AB, 211E-G and 217K.

[48] AB, 188Q-S.

[49] AB, 231P-233F.

[50] Applicant’s Grounds of Appeal Against Conviction dated 21 May 2020, 4.

[51] AB, 231F-T.

[52] AB, 27P-T.

[53] In fact, the actual ketamine narcotic was 3 kilogrammes while the total mixture was 6 kilogrammes.

[54] AB, 188Q-189G and 210M-212J.

[55] First affirmation of the applicant, at [14] to [18] and Second affirmation of the applicant, at [14].

[56] AB, 24I-K.  The applicant’s evidence to this effect was briefly summarised by the judge in his summing-up.  We note the applicant’s evidence was not included in the Appeal Bundle.

[57] Affirmation of Mr Wong, at [8].

[58] AB, 211E-212H.

[59] AB, 25D-N.

[60] AB, 171-172.

[61] AB, 27F-M.

[62] AB, 27M-O.

[63] AB, 27P-S.

[64] Applicant’s Grounds of Appeal Against Conviction dated 21 May 2020, 2.

[65] AB, 32E-33G.

[66] Section 54(1)(f) of the Criminal Procedure Ordinance, Cap 221.

[67] HCCC 17/2011.

[68] AB, 13R-S.

[69] AB, 12N-13S.