HKSAR v. CAI ZONG GANG

CACC 486/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 486 OF 1998

(ON APPEAL FROM HCCC 317 OF 1997)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted of trafficking in a large quantity of dangerous drugs after a trial before Mr. Recorder Wong, S.C. and a jury. He seeks leave to appeal against his convictions. The charges read:

"First Count
STATEMENT OF OFFENCE

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

CAI Zong-gang, on the 30th day of May, 1997 outside Room 601, 6th Floor, Asia House, No. 390, King's Road, North Point, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2,023.26 grammes of a mixture containing 1,626.29 grammes of cocaine hydrochloride."

Second Count
STATEMENT OF OFFENCE

Attempt to traffic in a dangerous drug, contrary to section 159G of the Crimes Ordinance, Cap. 200 and section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

CAI Zong-gang, on the 30th day of May, 1997 outside Room 601, 6th Floor, Asia House, No. 390, King's Road, North Point, in Hong Kong, attempted to unlawfully traffic in a dangerous drug, namely 4,081.96 grammes of a mixture containing 3,275.91 grammes of cocaine hydrochloride."

2. The first six admitted facts provide useful background to these offences:

"1. At about 10:40 p.m. on 28th May 1997, a Bolivian male passenger by the name of SUAREZ CHACON RAUL arrived from Japan at the Hong Kong International Airport. He was carrying two travelling bags; one was green (Exh P24) and the other was black (Exh P26) in colour. He presented these two travelling bags at a customs counter for clearance.

2. When the green travelling bag was examined at the customs counter, 3 boxes of transformer and some clothing were found. These transformers were felt very heavy and were found x-ray opaque.

3. One of the 3 transformers was taken out of the transformer paper box (Exh P1). Then the transformer case (Exh P2) was opened. Inside that transformer case was found a sealed metallic box (Exh P3). When the metallic box was opened, 3 plastic bags, each containing a block of white substance, were found. A small portion of the white substance was tested with a test reagent and the white substance was found to be suspected cocaine. The Bolivian male was immediately arrested for trafficking in a dangerous drug.

4. The above 3 plastic bags as well as the 3 blocks of white substance therein (Exh P4 to Exh P9), together with Exh P1 to P3, the other 2 unopened transformers, the green and the black travelling bags and the clothing inside were taken over by Customs Officer 8782 CHUNG Wai-tung at 1:25 a.m. on 29th May 1997 for safe custody.

5. The Bolivian male was subsequently taken to Room 601, 6/F, Asia House, King's Road, North Point where a controlled delivery was mounted.

6. At about 8:45 a.m. on 30th May 1997, the defendant was arrested by customs officers outside Room 601, 6/F, Asia House, King's Road, North Point."

3. The prosecution case depended to quite a considerable extent upon the evidence of Mr. Suarez who was co-operating with the authorities. There was also evidence from the Customs and Excise officers who performed surveillance duties and from the staff of the mobile telephone company relating to the computer records of telephone calls made by the applicant.

4. Shortly after his arrest the applicant made an exculpatory cautioned statement to the authorities.

5. The gist of his statement was that he had been acting upon the instructions of his friend, Mr. Wong Wai who was still in Bolivia. Mr. Wong had asked him to assist one of his Bolivian friends by giving him US$1,000 for travelling expenses and to take delivery of some luggage belonging to Mr. Wong. He had no idea that there had been any dangerous drugs in the luggage.

6. We regret that it has to be said that the summing-up left much to be desired. It did not contain a chronological sequence of events and it took a considerable amount of time to understand what the case was all about. Even though the jury would have had the advantage of hearing the various witnesses giving their evidence, they would have derived little assistance from the summing-up so far as the facts of the case were concerned.

7. What is required is to marshal the evidence in a comprehensible and coherent whole.

8. The applicant did not go into the witness box at his trial. The jury however were satisfied at the appropriate level that the applicant was guilty on both counts. This was not before a most unfortunate mishap. The jury attempted to deliver 4:3 verdicts and regrettably were not stopped by the Recorder from indicating the result of their deliberations at that time. However after they were sent back again to continue their deliberations they did eventually reach acceptable verdicts.

9. The first and second perfected grounds of appeal can conveniently be dealt with together:

"1. The Prosecution having alleged that the defendant had lied to the investigating officers as to:

(a) the source of the US$1,000 given by the defendant to PW8 and

(b) telephone calls made by the defendant to PW8 and

(c) the defendant's inability to recognise the boxes which contained the drugs

and the Prosecution having addressed the jury on the basis that such lies might be supportive of the Prosecution case, there was a danger that the jury might believe that the lies went to proof of guilt and the learned trial Judge erred in law in failing to direct the jury as to the effect of such lies if proved.

2. The manner in which the learned trial Judge dealt with the disparity between the evidence of the Customs officers and what was said to them by the defendant concerning the defendant's presence in the vicinity of Asia House on 29 May 1997 gave rise to a danger that the jury might believe that the defendant had lied and that the lies went to proof of guilt, and the learned trial Judge erred in law in failing to direct the jury as to the effect of such lies if proved."

10. The question which is raised by these grounds is whether it is the first or the second category of considerations, which are dealt with in HKSAR v. Mo Shiu-shing [1999] 1 HKC 43, which applies to this case. At page 56 in the judgment of this court, Stuart-Moore, J.A. said:

"Conclusions to be drawn on approach to lies

We have taken time in which to consider the various cases referred to in this judgment in some depth. We have also taken the opportunity to consult with a number of other members of the Court of Appeal in order to seek a broad platform of approval for what is set out in this judgment as to when a 'lies' direction should be given and as to an appropriate formula to be used when it is given. We have reached the following conclusions:

(1) In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said. [See: R v Ng Chi-wai (above)]

(2) Where there is a danger that the jury may believe that lying goes to proof of guilt, usually because the prosecutor has alleged that the defendant has lied and has addressed the jury upon the basis that the lie is supportive of the prosecution's case, a twofold warning should be given to the effect that:

(a) lies can never prove guilt in themselves; and

(b) that persons may lie for reasons other than guilt.

This last direction will need to be accompanied by the possible 'innocent' reasons that are usually given as examples in a standard direction as to why a person facing an allegation of crime might lie. [See: Burge and Pegg (above)]."

11. The third category is not relevant to our considerations in this application. At first sight it would appear that there is much to be said in favour of the contentions being advanced by Mr. Cotsen on behalf of the applicant that it is the second category that is being called in question.

12. In support of this while it appears that the Recorder had adopted a neutral stance on the question of lies, the same cannot be said of prosecuting counsel in his closing speech to the jury. At p. 78F of the appeal bundle he said:

"So obviously, members of the jury, the defendant did tell lies as regards his phone calls to the Bolivian male. Why? Why did he lie? A person may lie for a number of reasons, not necessarily because of guilt, but why did he lie? Does he want to exculpate his role in this case?"

13. There were other examples where prosecuting counsel submitted that lies had been told. It is however necessary to consider this submission in conjunction with the remarks made by Mortimer, J.A. (as he then was) in R. v. Ng Chi-wai & Another, which are cited in Mo Shiu-shing (above) at page 54:

"The circumstances in which a proven and material lie can support the prosecution case are rare. As this Court has said on many previous occasions allegations of lying arise in almost every criminal case. Those allegations almost always relate to credibility and not proof of guilt. It is important to recognise that lying in a general way is not proof of guilt. Lying is relevant only to credibility. If there is the danger that the jury will be misled into thinking that lying goes to proof of guilt, the usual warning that accused persons may lie for reasons other than guilt and such lies do not prove guilt is necessary. Where there is a clear factual issue on guilt for the jury's consideration, a direction that a lie may support the prosecution case will hardly ever be appropriate.

The rare circumstances in which a direction that a lie may support the prosecution case may be appropriate are as follows:

(1) Where the accused relies upon an alibi;

(2) Where the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted."

14. If the circumstances of the instant case are analysed in any depth it is apparent, notwithstanding the submissions of prosecuting counsel at trial, that this was in essence a case which simply concerned the credibility of the applicant and Mr. Suarez. The question as to whether or not a truncated lies direction should have been given by the Recorder to the jury involved a nice question of judgment. We are a little surprised that no such direction was given but we are inclined to the view that no such direction was mandatory.

15. However even if the contrary view is taken we are of the opinion that the failure to give such a direction did not amount to a material irregularity. When the case is considered as a whole what it boiled down to was whether the applicant knew that dangerous drugs were in the luggage he took possession of. This would have been clear to the jury.

16. These grounds cannot succeed.

17. The third ground reads:

"3. PW8 having given evidence that he was able to identify the voice of the defendant as the person who had telephoned him on three previous occasions, the learned trial Judge erred in failing to properly direct the jury as to the need for caution before convicting the defendant in reliance upon that evidence and the need to examine carefully the circumstances in which the voice identification was made."

18. PW8 was of course Mr. Suarez. What needs to be borne in mind on this ground is that PW8 was not seeking to identify the voice speaking to him on the phone simply as the applicant. What he was saying was that it was his impression that the speaker was the same speaker. In this connection it should be remembered that Mr. Suarez on his evidence had flown into Hong Kong to make delivery of a large quantity of cocaine. His attention would have been focused upon whom he would be making delivery to. It is unlikely that he would have been having contact with many other people. It will also of course be appreciated that the conversation would have been in the Spanish language which is not a language currently used much in Hong Kong. We do not consider that it was incumbent upon the Recorder to give the jury further direction on this.

19. The fourth ground reads:

"4. The reference to the defendant's failure to give evidence made by counsel for the Prosecution in his final speech to the jury amounted to a material irregularity in the circumstances of the learned judge erred in failing to direct the jury no adverse inference should be drawn from the defendant's election in this respect."

20. In his closing speech prosecuting counsel addressed the jury while being under the mistaken impression that the Recorder would direct the jury on presumptions under the Dangerous Drugs Ordinance, Cap. 134. Accordingly he made reference to the necessity of the applicant rebutting the presumption of possession on the balance of probabilities.

21. As it transpired the Recorder made no reference to presumptions in his summing-up. What he did do however was to give very clear directions on the burden of proof. At p.4 of the appeal bundle it reads:

"Now, I want to turn to a fundamental matter of law. It is one that you have all heard before, because the prosecution and the defence in this case have referred to it, and I am going to ask you to keep it at the forefront in your mind. The prosecution has brought the charge on indictment against the defendant, and it is therefore the prosecution who has to prove the case against the defendant.

At no stage does the defendant have to prove anything at all, and he certainly does not have to prove his innocence. From beginning to end of this case, it is for the prosecution to prove that the defendant is guilty, and by proving it, that means they must produce before you evidence that makes you feel sure that he is guilty."

22. We do not think that the jury could have laboured under any illusion on this score. It would clearly be the case that the applicant did not have to prove anything in the way of presumptions. The direction given to the jury was in fact more favourable to the applicant than it should have been in that no burden was placed on the applicant to rebut, on a balance of probabilities, the presumption that he knew what was in the luggage in his physical possession. This ground also cannot succeed.

23. The convictions were in no way unsafe or unsatisfactory and this application is dismissed.