HKSAR v. LAU TAK MONG

FAMC No. 42 of 2018

[2018] HKCFA 58

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 337 OF 2016)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.  This application for leave to appeal was dismissed at the hearing for reasons which we now hand down.

2.  The applicant was convicted after trial before Yau J and a jury[1] of trafficking in 48 grammes of “Ice”[2] and sentenced to 9 years and 6 months’ imprisonment.  He was acquitted on a second count of such trafficking.  His appeal to the Court of Appeal was dismissed[3] and his application for a certificate for leave to appeal on points of law was refused.[4]

3.  The applicant, now represented by Mr Peter Duncan SC, seeks leave on the substantial and grave injustice basis, submitting that:

“(i) The Trial Judge failed to give a lies direction when the prosecution had alleged that the Applicant had lied on material collateral issues in order to escape conviction.

(ii) Having allowed the prosecutor to engaged in an extensive and excessive cross‑examination of the Applicant as to the issue of the motive of the police officers in assaulting and fabricating evidence against the Applicant, the Trial Judge failed to provide the jury with an appropriate direction that the Applicant was not required to prove any motive to lie on the part of a witness.

(iii)     The Trial Judge failed to give an inferential reasoning direction set in the context of the evidence.”

4.  In our view, none of the aforesaid submissions is reasonably arguable as a ground of substantial and grave injustice.

5.  The applicant’s case involved a complete denial of virtually every aspect of the police witnesses’ account of the raid on his premises, the discovery of the “Ice” and his arrest.  He accused them of framing him up on a fabricated case.  As McWalters JA, writing for the Court, pointed out, it was perfectly in order for the prosecution to suggest that his account was a lie.  The prosecutor’s cross‑examination was aimed at discrediting his version of events while seeking to prove the prosecution’s case.  This was apparent from the way he made the closing submissions.  Resolution of this conflict of evidence was inevitably to be left to the jury for them to decide whether the prosecution had proved its case beyond reasonable doubt.[5]  It is not reasonably arguable that without a lies direction, the cross‑examination gave rise to a risk that the jury might improperly conclude that he must be guilty because he was found to have told lies.[6] Mr Duncan could not point to any suggestion of this in either the judge’s summing up or the prosecution’s closing submissions.  In addition, his acquittal on the second count shows that the jury were independently assessing the evidence in relation to each charge.

6.  Regarding the second point raised, we respectfully agree with McWalters JA that:

“... by his questions Mr Cahill [the prosecutor] was suggesting to the applicant that the police had so much incriminating evidence against him that there was simply no need for them to resort to planting evidence, fabricating admissions and applying violence to the applicant. The purpose of this line of questioning is to demonstrate the implausibility of the applicant’s allegations and there is nothing improper in it.”[7]

7.  It is not reasonably arguable that the prosecution’s line of cross‑examination involved the impermissible suggestion that the applicant was required to provide a motive for the police beating him up or planting drugs on him, thereby reversing the burden of proof.[8]  As was the case in putting to him that he was lying, the purpose here was simply to show that the applicant’s allegations had no substance to them.

8.  There is nothing in the third point either.  The Judge did give a general direction as to how inferences are to be drawn.  The jury were merely required to assess the respective witnesses’ credibility and reliability in deciding whether the case had been sufficiently proved.  There were no exceptional circumstances demanding a special, tailored direction regarding inferences.[9] As McWalters JA put it:

“Here the facts and issues were quite straightforward and it seems to us that little in the way of assistance would have been needed by the jury in applying the legal principles to the evidence before them. The key issue in this case was whether the applicant was the occupant of the mah‑jong room. The jury could not have convicted the applicant of Count 1 if they thought that his denial of occupancy was or might be true. Once the jury rejected the applicant’s denial and found he was the occupant of this room then his conviction of Count 1 was inevitable. In terms of the finding that he was the occupant of the mah‑jong room the evidence in the prosecution case was overwhelming. He had a key to the room, he was seen trying to open the door of the room and his home visit permit was found in the mah‑jong table in the room.”[10]

9.  The application was accordingly dismissed.