HKSAR v. YUEN YU KIN

CACC 29/2019

[2020] HKCA 447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 29 OF 2019

(ON APPEAL FROM HCCC NO 192 OF 2018)

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J U D G M E N T

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1.  The applicant seeks leave to appeal his conviction of trafficking in 960 grammes of ICE mixed in 1 kg of crystalline solid.  He was sentenced to 21 years’ imprisonment.

The Prosecution Case

2.  The trial judge put it thus in his summing up (AB 7K–R) :

“ In a nutshell, the prosecution case is that on the material day, the defendant, knowing that dangerous drug would be placed inside a basketball, went to the vicinity of Yue Man Square rest garden to collect the basketball. He knew that dangerous drug was inside the basketball and he deliberately picked it up. The prosecution further contended that judging from all the circumstances, including the substantial value of the drug and the way it was divided and packed, the only reasonable conclusion or inference to be drawn is that the defendant obtained possession of the ‘Ice’ for the purpose of trafficking. Members of the jury, in due course, I will direct you on the elements of the offence of trafficking and the law on drawing of inferences.”

The Defence Case

3.  Turning to the defence case, he said (AB 7S–8C) :

“ The defence case, briefly stated, is that the defendant went to Yue Man Square rest garden simply to meet a friend, Wah Gor. They were going to have tea later. However, the defendant was late for the appointment and Wah Gor had left to do some shopping. Whilst the defendant was waiting for Wah Gor to return, he, out of curiosity, and because was boredom, picked up the basketball intending to play with it. He did not know that dangerous drug had been concealed inside the basketball and he had nothing to do with any dangerous drug found inside.”

The Issue

4.  The issue for the jury was then defined as follows (AB 8D–H) :

“ So members of the jury, there is no dispute that the defendant had picked up the basketball at the material time. Whilst there are a number of issues raised during the course of the trial, you may think that the most important issue for you to decide in this case is whether the defendant knew at the time he approached the basketball that there was dangerous drug concealed inside the basketball, and with that knowledge, he then obtained possession of the basketball as well as the things concealed inside.”

Ground of Appeal

5.  Ms Sezen Chong who did not appear in the trial below puts forward one ground, ie the judge ought to but nevertheless failed to give a ‘full’ lies direction.

(the lies)

6.  The judge referred to the applicant’s lies. There were two main ones.  The first, concerning whether he had knowledge of Wah Gor’s phone number, appeared in the following passages (AB 22N–T; AB 37T–38B) :

“     … it is the defence position that what the defendant said in the interview is true, save and except that he did not have the mobile phone number of Wah Gor, as in it did not show on caller display. The defendant said in his evidence in court that he lied to the police about this because of the way he was treated by the police and he did not want to drag Wah Gor down with him. Now, the defendant has adopted what he said in the video-recorded interview, save and except that part which he had told the police that he did not know the number of Wah Gor. You shall treat the video-recorded interview as part of his oral evidence in court and assess it accordingly.

……

    The defendant referred to his call records and said that the calls with the number, 9525 1043, on 19 December 2013, were his telephone conversations with Wah Gor. He said he lied to the police in the video-recorded interview about not knowing Wah Gor’s number because he did not want to drag him down in the matter.”

7.  The second lie concerns whether the applicant had exclusive use of his own mobile phone (AB 39I–M) :

“ The defendant was asked about numerous telephone calls made by or to his mobile phone number during the night on the 18th when he said he was sleeping at his girlfriend’s place. The defendant said that he was not the only one who used his mobile because he said his girlfriend also did as hers was out of order and he could not afford to buy her another one. As to this, members of the jury, you would note that in his video-recorded interview, the defendant has said at counter 280 that apart from him, no one used his mobile.”

(the impugned direction)

8.  On the correct approach to these and other possible lies by the applicant, the jury was given this direction (AB 10A–I) :

“ When the defendant was cross-examined, it was put to him on several occasions, either expressly or impliedly, that he was not telling the truth. Now, members of the jury, lies does not prove guilt. Therefore, even if you were to find that the defendant had lied in his evidence or in his video-recorded interview, it would not follow that he is guilty of the charge. Even if you were to find that the defendant had lied, this would be a matter which goes only to his credibility as a witness. Moreover, even if you were to entirely reject the defendant’s evidence, that would not relieve the prosecution of its burdens of proof. It would not in any way strengthen the prosecution case against him either. If you reject the defendant’s evidence, then you simply put his evidence aside and attach no weight to it. However, you still need to decide whether the evidence of the prosecution makes you sure of the defendant’s guilt.” (emphasis added)

(the applicant’s ground elaborated)

9.  In her written submissions, Ms Chong directed all her objections to the lie about Wah Gor’s phone number.  She was not critical of the judge’s handling of the lie about whether the applicant shared his phone with his girlfriend.  Ms Chong explained :

“ 18.   The lie [about not having Wah Gor’s number] did not just go to the credibility of the applicant. It went to the central issue of the defence, whether the applicant went to the Rest Garden to meet up with Wah Gor for tea, in that :

(i)    The lie contradicted the defence case that the applicant went to see Wah Gor in the Rest Garden. If he indeed went there to meet up with Wah Gor, he would have told the police in the VRI Wah Gor’s mobile phone number for the police to seek confirmation with Wah Gor as the prosecution suggested [in their closing speech, AB 70N–P].

(ii)   If the applicant indeed had the mobile phone number of Wah Gor as he claimed in the witness box, he would have called Wah Gor whilst waiting for Wah Gor to ask whether Wah Gor had finished shopping and would be returning to the Rest Garden as the prosecution suggested [in their closing speech, AB 74C–G]. There were no call records after 1628 hours.

19.   The jury’s finding of the lie (which was admitted by the applicant in testimony) and their rejection of his explanation for the lie (not to drag Wah Gor down in the matter) could have led to the following impermissible reasoning :

(iii)   The applicant was unable to tell the police Wah Gor’s mobile phone number in the VRI because he did not in fact had an appointment with Wah Gor to meet up at the Rest Garden on the day;

(iv)    He did not call back Wah Gor whilst waiting in the Rest Garden because he did not arrange to meet up with Wah Gor there;

(v)    His reason of going to the Rest Garden was not to meet Wah Gor but to pick up the basketball. Hence, he was guilty of knowingly trafficking in the dangerous drug which was concealed in the basketball.

20.   In the [impugned direction], the Learned Judge indeed directed the jury that if they were to find that the applicant had lied in his evidence or in his VRI, it would not follow that he was guilty of the charge.  It would only go to his credibility. This direction did not specifically link to the lie about Wah Gor’s mobile phone number.

21.   In the prosecution’s closing submissions and in the summing up, there were other occasions that the prosecuting counsel referred to the applicant’s evidence as lies or that there were inconsistent statements of the applicant which the jury might find lies, for example, the prosecution said the applicant was lying when he said he could not remember who that person was with the mobile phone number 5519 9510 [AB 71A–N]; when being cross-examined on the 22 call records with 5519 9510, the applicant said his girlfriend also used his mobile phone [AB 71D] but in his VRI he said only himself used his mobile phone [AB 39I–M].  These other lies did not carry the real danger of impermissible reasoning but the lie [about War Gor’s phone number] did.  Although the Learned Judge gave a blanket direction not to use any lies to find guilt, given the danger of the lie, it is submitted that it ought to be specifically identified from other lies and the jury specifically directed and warned of the danger by the Learned Judge.

22.   When the Learned Judge summarized evidence of the lie [AB 22N–T; AB 37T–38B], there was no specific reminder that such lie was not probative of guilt.  Nor was there any reminder to the jury that there might be innocent reasons for the lie and invited the jury to consider whether they would accept the applicant’s explanation for the lie.

23.   It is submitted that the [impugned direction] fell short of a full lie direction and was inadequate in guarding against the risk of the impermissible reasoning as hereinabove listed.”

10.  Before me, Ms Chong adhered closely to her written submissions and had little to supplement.

Discussion

11.  I am not persuaded that these submissions are reasonably arguable.

12.  Unless he was telling the truth, there is good tactical reason why the applicant should say he had lied, and that is to put right his original version of making an appointment to meet someone – a friend – without having or getting their phone number.  Compared to that, the explanation he gave in court about not wanting to cause Wah Gor any trouble is at least consistent with common social behaviour.  There is also little mileage to be gained, as the prosecutor sought to do, on the applicant not making any follow-up calls after 4.30 pm because, under this new version, Wah Gor had already promised to return so it is difficult to argue that the applicant, who was late, should become impatient and kept chasing.

13.  Either way, be it the new or the old version, the truth or just a tactical decision, the applicant is similarly burdened – I do not mean in the legal sense – to explain his idling in the rest garden. There are other matters like whether and why he was taking the ball away, or whether and why he tried to escape the police.  They are all part of a defence of someone allegedly missing an appointment and being caught in the mishaps that followed.  I do see how it is different from the vast majority of cases “where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic” (Yuen Kwai Choi and HKSAR (2003) 6 HKCFAR 113, at 128J–129A), where no lies direction is required to be given.

14.  At trial, defence counsel was content not to ask for any lies direction half or full, on the understanding that the lies would not be relied on as supportive of the prosecution case (AB 83K).  It resulted directly in the impugned direction which proscribed the use of the above lies in any way except where and when it goes to credibility.  I cannot think of a better deal for the applicant.

Conclusion

15.  It is for the above reasons that I refuse the applicant’s application.

Warning on Loss of Time

16.  At the conclusion of the hearing, I have warned the applicant of the effect of section 83W, Cap 221, in the event of an unsuccessful renewal.