LAW CHUNG KI AND ANOTHER v. HKSAR

FACC Nos 3 & 6 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS 3 & 6 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 220 OF 2002)

_____________________

_____________________

_____________________

J U D G M E N T

_____________________

Chief Justice Li:

1.  At the conclusion of the hearing we announced our decision allowing the appeals, quashing the convictions appealed against, ordering that both appellants be retried and remanding them in custody to face their retrial.  We reserved our reasons, and now hand them down.  They are given by Mr Justice Bokhary PJ and Mr Justice Chan PJ for the Court.

Mr Justice Bokhary PJ and Mr Justice Chan PJ:

2.  Three aspects of the criminal law are engaged in this case:

(1) cross-examination of an accused on his antecedent statement;

(2) the proper approach to defence evidence; and

(3) the directions that a jury should be given on how to approach what is commonly called “cut-throat” evidence i.e. the evidence of two or more co-accused each of whom not only asserts his own innocence but alleges or suggests that the other or others are guilty. 

The first concerns the 1^st appellant only while the other two concern both appellants. 

Background

3.  We turn now to the background circumstances of the case, and will from now on refer to the appellants as they were referred to at the trial.  In other words, we will refer to the 1^st appellant as the 1^st accused and to the 2^nd appellant as the 2^nd accused. 

4.  On the afternoon of 28 November 2000 the police observed the 1^st accused entering a flat at 5:10 and then leaving it at 5:17.  They intercepted him in the staircase on the ground floor.  On him they found dangerous drugs consisting of 150.14 gms of a mixture containing 96.71 gms of heroin hydrochloride.  It was never in dispute that they found those drugs on him.  They also said that they found on him a key to the metal grille of the flat.  He denied having that key.  They took him back to the flat.  Apart from the metal grille, the flat also had a wooden door.  No key to that door was found on him.

5.  The police gained entry to the flat after breaking down the wooden door.  There was one person in the flat, namely the 2^nd accused.  In the flat the police found more dangerous drugs and some drug-packing paraphernalia.  The drugs found in the flat were on a coffee table, on a dressing table, on the floor, in a brief case and in two biscuit tins.  They consisted of 436.55 gms of a mixture containing 250.56 gms of heroin hydrochloride and 1,386.21 gms of a crystalline solid containing 1,380.77 gms of methamphetamine hydrochloride, commonly called “ice”.  Also found in the flat were the 1^st accused’s fingerprints on a drinking glass and the 2^nd accused’s fingerprints on a plastic box.  The 2^nd accused’s mother was the tenant of the flat, which was in a public housing estate.  He was one of the registered occupants of the flat.

6.  As to what the 2^nd accused was doing when the police entered the flat, there was a conflict between their evidence and his.  They said that he was standing near a chair by the coffee table and that he was wearing gloves and holding a pair of scissors.  He said that he had been asleep in the bedroom, that he was woken by a loud banging noise and that he was walking out of the bedroom when they entered the flat.  They said that the keys to the flat were found in a pocket of the trousers which he was wearing.  There was never any dispute that he had those keys.  Nor was there ever any dispute that those keys were in that trousers pocket.  But it was his evidence that he did not happen to be wearing those trousers at the time.

7.  When the police sought to interview the 1^st accused, he exercised his right to silence.  The 2^nd accused chose to speak to the police, denying knowledge of the drugs and drug-packing paraphernalia in the flat.

Result in the courts below

8.  Two counts were brought.  Count 1 was of trafficking in the drugs found on the 1^st accused.  It was brought against him alone.  Count 2 was of trafficking in the drugs found in the flat.  It was brought against both accused.  The 1^st accused pleaded guilty to count 1.  Both accused pleaded not guilty to count 2.  In the witness-box each denied trafficking in the drugs found in the flat and gave an account pointing to the other as the person trafficking in those drugs.  The jury convicted both of them.  Deputy Judge Toh sentenced the 1^st accused to 25 years’ imprisonment and the 2^nd accused to 22 years’ imprisonment.  She arrived at 25 years for the 1^st accused by giving him 6 years on count 1 and 22 years on count 2 and by making the 22-year term consecutive to half of the 6-year term.

9.  The Court of Appeal (Stock and Yeung JJA and Burrell J) affirmed the accused’s convictions, but reduced the 1^st accused’s sentence to 22 years by making his 6-year term and 22-year term wholly concurrent.  By leave of the Appeal Committee, both accused now appeal to this Court against their convictions on count 2.  The Court of Appeal’s judgment makes no mention of the respondent’s concession before them that the 1^st accused’s conviction on count 2 was unsafe and unsatisfactory.  While the Court of Appeal had to give proper consideration to the appeal notwithstanding the concession, the better course would have been for the concession to have been noted in their judgment.

1^st accused’s evidence

10.  Shortly stated the 1^st accused’s evidence was along the following lines.  His usual drug supplier had been arrested.  So he started obtaining heroin from the 2^nd accused for on-sale.  He had been doing so for about three months prior to 28 November 2000.  On that day he returned to Hong Kong from the Mainland, arriving at about 3.45 in the afternoon.  He then telephoned the 2^nd accused.  On the telephone they made an arrangement pursuant to which he went to the flat and obtained on credit from the 2^nd accused the $90,000 to $100,000 worth of heroin found on him by the police that afternoon.  Their practice was that he would pay the 2^nd accused only after the drugs had been on-sold.  His fingerprints on the drinking glass in the flat got there because he had taken a drink of water out of that glass when he went to the flat on that occasion. 

2^nd accused’s evidence

11.  As opposed to all of that, the 2^nd accused gave evidence along the following lines.  In October 2000 his mother was involved in a traffic accident.  Thereafter she moved out of the flat to live with a friend.  Being busy looking for a job and taking his mother to see the doctor, he only occasionally returned to the flat.  The 1^st accused, whom he knew, had the keys to the flat’s grille and wooden door.  In November 2000 the 1^st accused often stayed in the flat, sleeping in the sitting room.  The 1^st accused also kept his clothes, compact discs, radio, fish tank and plants in the flat.  On 27 November 2000 he i.e. the 2^nd accused spent the whole night chatting with his mother and did not return to the flat at all.  He returned to the flat between 8 and 9 o’clock the following morning to get some documents.  Feeling unwell he went to sleep.  At noon he went out for lunch.  Upon returning to the flat he took some medicine and went to sleep again.  He was woken by a loud banging noise, and the police entered the flat as he was walking out of the bed room. 

12.  So each accused mounted a “cut-throat” defence.  And we will in due course come to the matter of a “cut-throat” defence direction, which is the third of the three aspects of the criminal law engaged in this case.  But before that we will deal with the other two, the first of which is cross-examination of an accused on his antecedent statement. 

Cross-examination of an accused on his antecedent statement

13.  An antecedent statement is an uncautioned statement taken from an accused by the police in order to enable them to inform the court of his antecedents for the purpose of sentence in the event of a guilty plea or a guilty verdict.  It was rightly established by the Court of Appeal’s predecessor the Full Court in R v. Cheng Chung Yat [1970] HKLR 269 that it was impermissible for prosecuting counsel to cross-examine an accused on his antecedent statement.  In R v. Lam Hing Nam [1985] 1 HKC 376 the Court of Appeal rightly affirmed that.  But it wrongly went further to hold that even a co-accused’s counsel is precluded from cross-examining an accused on his antecedent statement.  Precluding such cross-examination is inconsistent with the principle on which the Privy Council acted in Lui Mei Lin v. R [1989] 1 AC 288 where their Lordships held that counsel for a co-accused is entitled to cross-examine an accused on his otherwise inadmissible out-of-court statement provided that it is relevant.  The otherwise inadmissible out-of-court statement in Lui Mei Lin’s case happened to be a confession statement excluded for involuntariness.  But the principle applies equally to antecedent statements.  The judge should tell the jury this.  They should take the cross-examination into account to see what, if any, help it gives the co-accused on whose behalf it was conducted.  But they must not use the statement against the accused who made it.

14.  In the present case the 1^st accused’s antecedent statement gives the flat where the drugs were found as his address.  Deputy Judge Toh rightly permitted cross-examination on that by counsel for the 2^nd accused.  But she wrongly permitted cross-examination on that by prosecuting counsel too.  Mr Cheung Wai-sun for the respondent properly concedes that such cross-examination by prosecuting counsel constitutes a departure from accepted norms occasioning substantial and grave injustice to the 1^st accused.  We should mention that neither counsel who appear for the respondent before us had appeared in the courts below.

The proper approach to defence evidence

15.  In her summing-up Deputy Judge Toh said this to the jury:

“The defendants in this case have both chosen to give evidence and, members of the jury, you must judge that evidence by precisely the same fair standards as you apply to any other evidence in this case.  You must decide this case only on the evidence that has been placed before you.  When you have decided what evidence you are sure is proven, it is for you to decide what conclusions to draw from that evidence.”

Mr Cheung concedes that this direction conveyed the wrong approach to defence evidence.  This concession, too, is rightly made.  In Liberato v. R (1985) 159 CLR 507 at p.515 Brennan J (later Brennan CJ) said in the High Court of Australia that “[t]he jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue”.  And in Sze Kwan Lung v. HKSAR (2004) 7 HKCFAR 475 at pp 486I – 487A we referred to that statement and said that “[w]hether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.”  Depending on the circumstances and the summing-up as a whole, it may be possible for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof provided that nothing said in the summing-up runs counter to that message.  Unfortunately the passage which we have quoted from the summing-up in the present case does run counter to that message. 

16.  Mr Cheung’s concession on this aspect of the case necessarily applies to both accused subject to his argument, to which we will come in due course, that the 2^nd accused’s conviction should be upheld by an application of the proviso.  

“Cut-throat” defence direction

17.  What the jury needs to know about “cut-throat” defences is this.  If there is a reasonable doubt as to whether evidence given in support of a “cut-throat” defence is true or false, such doubt will succeed in exculpating the accused who gave such evidence in his own favour.  But such evidence cannot adversely affect any accused against whom it is given unless the jury feels satisfied beyond reasonable doubt that it is true.  Lawyers understand that.  And perhaps a jury can arrive at that understanding simply upon general directions as to the criminal burden and standard of proof.  But the appropriate course is for the judge to spell it out for the jury.

18.  It does not matter what words the judge uses as long as he gets the message across.  One way of doing so would be to give a “cut-throat” defence direction along the following lines:

“When an accused enters the witness-box it is usually for the purpose of giving an account simply to the effect that he is innocent.  In other words, it is for the purpose of giving an account exculpatory of himself.  Sometimes, however, an accused’s account is not confined to saying things in his own favour.  And it includes saying things against another or other accused.  He may say that they are guilty or, short of that, he may say something that at least undermines their position in some way.  So it can happen that an accused gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused.

There are cases in which two or more accused enter the witness-box, and each gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused.  Lawyers commonly refer to such accounts as ‘cut-throat’ defences.  What a jury must always bear in mind about evidence given in support of a ‘cut-throat’ defence is this.  If the evidence given in support of a ‘cut-throat’ defence leaves the jury with a reasonable doubt as to the guilt of the accused who gave such evidence in his own favour then he must be acquitted.  But such evidence cannot adversely affect any accused against whom it is given unless the jury feels satisfied beyond reasonable doubt that it is true.  All of this is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.” 

Self-interest warning?

19.  That, it will be noticed, does not include any warning to the effect that each accused may have been more interested in getting himself acquitted than in telling the truth.  A warning of that kind is among the specimen directions provided by the Judicial Studies Board, and such a warning was given to the jury in the present case.  But the advisability of a self-interest warning is a matter of some controversy.  That is illustrated by, for example, the decisions of the English Court of Appeal in R v. Jones and Jenkins [2004] 1 Cr. App. R. 60 at pp 67-68 and R v. Petkar and Farquhar [2004] 1 Cr. App. R. 270 at pp 293-294.  The decision in Jones and Jenkins’s case favours a self-interest warning while the decision in Petkar and Farquhar’s case questions its advisability.

20.  This brings us to Robinson v. R (1991) 180 CLR 531 the facts of which may be taken from the headnote where they are summarised thus:

“At the trial of a rape charge the complainant gave evidence that she had consented to intercourse as a result of the accused's threats. The accused gave evidence that the consent had been freely given. In the course of directing the jury about assessing the credibility of witnesses, the judge said that they should take into account the interest a witness might have in the outcome of the case, and that ‘you might think ... that the accused had the greatest interest of all the witnesses ... and that, therefore, you should scrutinize his evidence closely’. The accused's counsel did not ask for the direction to be withdrawn but asked the judge to direct the jury that the complainant also had an interest in the outcome. The judge gave such a direction. The accused was convicted.”

Quashing the conviction and ordering a retrial, the High Court of Australia said this at pp 535 – 536:

“Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.”

In R v. Leung Kit Chun [1994] 1 HKC 168 the Court of Appeal respectfully agreed with what was said in Robinson’s case.  So do we.

21.  For jury trials in Hong Kong involving “cut-throat” defences, we are of the view that the advantage to an accused of a self-interest warning in respect of his co-accused’s evidence against him is, at least in general, outweighed by the disadvantage to him of an observation from the bench that he, too, may have been more interested in getting himself acquitted than in telling the truth.  Our view is that, at least in general, the judge should not take the initiative of giving the jury a self-interest warning.

22.  Of course it may happen that what defence counsel have suggested in cross-examination and/or urged in speech may drive the judge to feel that he should say something about self-interest.  Or the judge may feel driven to do that by a question sent to him by the jury.  If the judge feels driven to say something about self-interest, he might do so along the following lines:

“Each accused is presumed innocent unless and until proven beyond reasonable doubt to be guilty.  So the thought that he may have been more interested in getting himself acquitted than in telling the truth should not form any part of your thinking when deciding whether to acquit or convict him.  It is, however, something which you may take into account when deciding whether you feel sure that what he says against a co-accused is true.  All of this, too, is simply a part of the law that if there is any reasonable doubt as to an accused’s guilt, then he must be acquitted.”

23.  In the present case the Court of Appeal referred to R v. Walton [2003] EWCA 3644 where Mantell LJ, giving the judgment of the English Court of Appeal, proposed (at para. 18) a “cut-throat” defence direction which included something along the following lines: 

“Although, as I have said, you cannot use this fact in support of the case against Walton, it is something you are entitled to take into account in O'Callaghan's favour in assessing, as against O'Callaghan, Walton's evidence that he is not guilty and his suggestion that O'Callaghan has sought to exculpate himself by falsely blaming Walton.

When a defendant gives evidence against another defendant you cannot act on that evidence against that other defendant unless you are sure that it is true.

On the other hand if you think the evidence may be true but are not sure it is true, then, although you must not use it against the other defendant you will use it in favour of the first defendant.

There is nothing strange about that. It is simply a reflection of the fact that the burden of proof is on the prosecution which means you can only act against a defendant on evidence you are sure about but you will act on evidence in favour of a defendant which you think may be true and which, therefore, the prosecution has not made you sure is untrue.”

That direction is essentially to the same effect as the one which we propose earlier on in this judgment, but the direction which we propose is more appropriate for Hong Kong. 

24.  Deputy Judge Toh did not give the jury a “cut-throat” defence direction.  The Court of Appeal regarded this non-direction as immaterial in the circumstances, giving these reasons why they thought so:  

“(1) it is clear that the jury disbelieved the accounts of both applicants. That is why both were convicted;

(2) throughout the summing up, the- judge told the jury that they could only convict if sure of each element of the offence against each applicant separately. There was nothing in the directions that undermined that constant theme; and

(3) the only real live issue in the case was the issue of possession and the judge had given the jury a comprehensive, clear and correct direction.”

25.  We will deal with those three reasons in reverse order.  Reason (3) is bad because a “cut-throat” direction is relevant to the issue of possession even where the other directions in regard to possession are correct.  Reason (2) is bad because when a “cut-throat” direction is given it operates as a safeguard additional to general directions on the criminal burden and standard of proof rather than as an alternative to them.  Reason (1) is bad because the view taken of the evidence by the jury was reached without a direction which they ought to have received in the circumstances.

26.  The Court of Appeal were right in identifying a non-direction but wrong in regarding it as immaterial. 

Proviso?

27.  Mr Cheung does not oppose the allowing of the 1^st accused’s appeal.  But he invites the Court to apply the proviso to dismiss the 2^nd accused’s appeal.  In all the circumstances, applying the proviso would not be appropriate.  To avoid the risk of saying anything that might prejudice the retrial, we refrain from saying anything more in regard to the proviso. 

Conclusion

28.  Each accused accepts that he cannot avoid a retrial or being remanded in custody to face it.  The foregoing are the Court’s reasons for allowing the appeals to quash the convictions appealed against, ordering that both accused be retried for trafficking in the dangerous drugs found in the flat and remanding them in custody to face such retrial.

Mr Gerard McCoy SC and Mr Selwyn Yu (instructed by Messrs Cheung & Yip and assigned by the Legal Aid Department) for the 1^st appellant

Mr Andrew Bruce SC and Mr Wong Po Wing (instructed by Messrs Simon Si & Co. and assigned by Legal Aid Department) for the 2^nd appellant

Mr Cheung Wai-sun and Ms Olivia Tsang (of the Department of Justice) for the respondent