HKSAR v. LAW YIK LUN

CACC 210/99

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 210 OF 1999

(On appeal from High Court Criminal Case No. 171 of 1998)

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J U D G M E N T

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Hon Woo JA (delivering the judgment of the Court):

1. This is an application for leave to appeal against conviction.

2. The defendant was charged with three counts relating to a dangerous drug. Counts 1 and 2 are for trafficking in respectively 57.04 grammes of a mixture containing 31.05 grammes of salts of esters of morphine and 6,452.01 grammes of a mixture containing 4,942.71 grammes of salts of esters of morphine. Count 3 is for manufacturing salts of esters of morphine.

3. The prosecution's case was that the defendant was seen by police officers to enter a flat, being Room 2, 8th Floor, New City Centre, No. 2, Lei Yue Mun Road, Kwun Tong, Kowloon at 5:30 pm on 24 December 1993. When he came out of the flat at 6:47 pm, he was stopped by the police officers and on his person was found the quantity of salts of esters of morphine, commonly known as heroin, referred to in Count 1. They also found two keys on the person of the defendant with which they opened the grille and door of the flat and gained entry. Inside the flat, the police found the quantity of heroin referred to in Count 2, with the paraphernalia for manufacturing drugs that formed the basis of Count 3.

4. The defence case was that the defendant was merely a tenant of the flat and he had sublet the whole of the flat to a person known as Cheung Tai-fui who was, even prior to the arrest of the defendant in this case, a wanted person in connection with drug trafficking. On 24 December 1993, between 5 pm and 6:05 pm, the defendant was in the Temptation Karaoke situated in Causeway Bay of which he was one of the partners, and he could not have entered the flat in Kwun Tong at 5:30 pm as allegedly observed by the police and stayed in it for over 11/4 hours before coming out of the flat at 6:47 pm. The defendant's case was that he was arrested at 6:47 pm on that day by the police outside the flat because he was attending the flat to demand overdue rent from his subtenant. He had not entered the flat at the time of his arrest, and he could not have done so at 5:30 pm when he was still in the karaoke. He also denied that he was in possession of the drugs in Count 1 when he was intercepted by the police outside the flat and claimed that he had not known about the drugs and the paraphernalia inside the flat.

5. The trial took place in March 1999 before Gall J and a jury in the Court of First Instance. The jury found him guilty on all three counts.

6. Several months prior to the commencement of the trial before Gall J, during the pre-trial review stage, Mr Harris, who also appears in these proceedings, applied on behalf of the defendant to the Judge to stay the prosecution permanently on the ground that a witness, Ng Wai-keung ("Ng"), was no longer available to give evidence on behalf of the defendant. The application was mainly based on a statement dated 1 April 1995 given by Ng to the police. The trial before Gall J was a second trial, the defendant having been convicted in a first trial but his convictions were overturned by this Court, differently constituted, on 22 May 1998. It was when the defendant served a Notice of Alibi in the first trial that the name of Ng was disclosed as a witness in that Notice. The police interviewed Ng and obtained a statement dated 1 April 1995 from him. In the statement, Ng said that he was working in the karaoke up till March 1994, and that on 24 December 1993, the date of the alleged offences, he went to work at the karaoke at 5 pm and found the defendant there, that the defendant had to wait for the cashier (called Bo Bo) to hand over a key to her, and that the defendant left the karaoke at about 6 pm after she turned up and the key handed over.

7. It was on the ground that Ng was no longer available as a witness at the second trial before Gall J that the defendant applied for a permanent stay.

8. There was agreement between counsel for the parties before the Judge as to the applicable law on how the court should exercise its discretion to stay prosecutions and no argument on this law was raised before us. We think, however, we should remind ourselves of a few of the key authorities on the subject. In AG's Reference (No. 1 of 1990) [1992] 1 QB 630, Lord Lane CJ delivering the judgment of the English Court of Appeal said at pp 643H-644C:

"In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

..., no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict." (emphasis added)

9. That decision was followed by the Hong Kong Court of Appeal in R v Holgate (No 1) [1996] 3 HKC 315, where Yang CJ stressed at p 320B-C that the proposition that "the thrust is that the lost evidence would more likely than not tend to rebut some evidence of the Crown case or would more likely than not tend to assist the accused" was incorrect, and restated the correct proposition based on AG's Reference that "the defendant has the burden of showing, on a balance of probability, that the absence of Pauline's evidence was so prejudicial to his case that no fair trial could be held." Pauline was the defendant's wife who had disappeared about two years before the trial but otherwise could have provided confirmation of the defendant's exculpatory explanations. The judgment continued, at p 320G-H:

"We have no doubt the judge's decision to refuse a stay was correct. It could not be shown that Pauline's absence from the witness box prejudiced the applicant to the extent that 'no fair trial could be held'. This is especially so when the trial was by a judge alone. He could ensure that the applicant had a fair trial in spite of the absence, and potential importance, of the witness."

10. Holgate was applied by this Court in HKSAR v Cheung Wai [1998] 4 HKC 249.

11. In the present case, although the Judge was satisfied that the defence and prosecution had exhausted all reasonable measures to find Ng and ensure his attendance, and that nothing further could be done to find any of the other persons who were at the karaoke that evening at about 5:30 pm and 6 pm, he refused the application. The crux of the Judge's reasons can be found in the following passages in his ruling given on 16 November 1998:

"I must also consider the weight of the evidence of Ng. The arrest took place on 24th December 1993. Ng continued to work at the karaoke club until March 1994 but said he did not know the Accused had been arrested until he was told by the wife of the Accused in March 1995, some 15 months after the event. Even though the events occurred on Christmas Eve, the gap in time and the fact that for 15 months after it occurred, the witness was unaware of the arrest of the man he considered to be his boss.

...

Since I am entitled to look at the nature of the evidence of Ng, I must be entitled to make some assessment of the value of that statement. This is not trial by affidavit nor by statement, but I can form a view of the strength of that statement. Given the length of time between the event and the claimed lack of knowledge of the event of the arrest of his boss, and given that Ng was regularly at the karaoke club from 5 p.m. to 1:30 a.m., the potential in the evidence is less than if it were a statement contemporaneous with the events of its description.

In all the circumstances of the nature of the potential evidence, and the fact that it is not direct evidence of the offences themselves, but evidence which may or may not go to the credit of the prosecution witnesses depending upon the view taken of it by the jury, I am not of the view that I ought to exercise my discretion to permanently stay this matter."

12. The first ground of appeal is that the Judge erred in refusing to stay the proceedings permanently. The error in law complained of is that the Judge "failed to give sufficient regard to the unfairness and resulting prejudice to the applicant caused by the non-availability of certain defence witnesses."

13. Indeed, apart from Ng, to whom the parties' attention was focused in the course of argument before the Judge, there were also mentioned Bo Bo, the cashier the arrival of whom at the karaoke on the evening in question relieved the defendant, and another colleague, who was a waitress in the karaoke that evening. When Mr Harris first addressed the Judge, he mentioned that Ng, Bo Bo and this waitress had been present at the first trial and it was because counsel then acting for the defendant (who it must be said was extremely inexperienced) had lunch with them and formed the view that they were not good witnesses to be relied on by the defendant that he decided not to call them. That counsel, however, gave a different reason to the defendant for not calling the witnesses, namely, that since the case had been going on so well it was not necessary to call any of them. The Court of Appeal quashed the convictions in the first trial because of gross incompetence of defence counsel, but there was no decision as to whether that counsel's decision not to call the three persons was proper, for that became unnecessary in view of the Court's decision on counsel's incompetence in another respect.

14. However, after Gall J had raised the importance of this Bo Bo and the waitress, even where Ng was no longer available to give evidence, Mr Harris caused further investigations to be made. The result was that he informed the Judge that despite all reasonable efforts that had been made by the defendant's solicitors, these two other persons could not be traced. He further corrected himself on what he had told the Judge before. In fact, Bo Bo and the waitress were not present at the first trial and what the defence counsel then advised was not to call Ng who was apparently the only defence witness then available. There was no explanation as to why, apart from Ng, the solicitors did not have the full name or particulars of these two persons or the means of contact with them, although they were referred to by Ng in his statement. While the Judge was of the view that all reasonable diligence had been exercised to get hold, but in vain, of Ng and these two other persons for the second trial, it does not preclude the Judge from taking into consideration the circumstances surrounding these two other persons in his concluding not to stay the prosecution. The quality of Ng's evidence as contained in his statement dated 1 April 1995 to the police must also be viewed in this light. On the whole, having examined the reasons given by the Judge and having carefully examined all the circumstances of this case as available now before us, we are of the view that the Judge's decision cannot be flawed. We cannot detect any error in law or principle in the Judge's refusal to exercise his discretion in favour of the defendant.

15. The Judge was certainly correct to assess the quality and credibility of Ng as a witness, and his view is tantamount to saying that Ng's evidence might not be sufficiently credible or reliable as to cast reasonable doubt on the police evidence that they found the defendant entering the flat at 5:30 pm on Christmas Eve 1993. The Judge took the view that the prejudice caused by the absence of Ng at the second trial was not substantial or nearly serious enough as to ground a permanent stay, and we reach the same conclusion. In other words, the defendant had failed to show to the Judge, on the balance of probabilities, that owing to the absence of Ng at the second trial, he would suffer serious prejudice to the extent that no fair trial could be held.

16. Although in his address Mr Harris only dealt with the unavailability of Ng as a witness in the second trial, the first ground of appeal complains about the prejudice caused to the defendant by the unavailability of certain defence witnesses. This must necessarily mean to include Bo Bo and the waitress who had been identified. It will be remembered that according to Ng, Bo Bo and a waitress were in the karaoke when the defendant was there, that the defendant was waiting for Bo Bo to give a key to her, and that it was after Bo Bo arrived that the defendant left the karaoke. If this part of Ng's statement is true, then Bo Bo would be no less an important witness to support the defendant's alibi as Ng. The inability to contact Bo Bo and the waitress at the second trial was accepted by the Judge, but no explanation at all had been proffered as to why they were not asked to standby for the first trial to give evidence in support of the defendant's case and what Ng had to say, nor was it alleged that they were not available then. The possible prejudice caused by the unavailability of Ng should also be viewed in the light of the lack of explanation from the defendant as to why Bo Bo and the waitress were not made available at the first trial and why no means of contact with them had been retained since that time. It seems to us that the prejudice to the defendant by the unavailability of Ng would have been much alleviated if Bo Bo and the waitress were available to testify instead. The unexplained lack of effort on the part of the defendant in retaining these two witnesses can be considered as analogous to a delay due to the defendant's own actions referred to in AG's Reference which can never properly found an application to permanently stay prosecution proceedings. This may be the reason why Mr Harris did not direct any part of his address to us about these two other possible witnesses.

17. Mr Harris also stressed the following aspects of the evidence in support of the defence case, and apparently to underline the very grave prejudice that the unavailability of the karaoke witnesses had caused to the defence, namely,

(a) the defendant had no previous convictions relating to dangerous drugs;

(b) in spite of a thorough examination there was absolutely no evidence of any contamination by way of heroin traces on the defendant's person or clothing such as might be expected if he had spent over an hour inside a 'factory' used for the purpose of manufacturing heroin; and

(c) no admission of any kind was made by the defendant at any stage after his arrest.

18. These items of evidence had been raised at the trial and also mentioned by the Judge in his summing up. Indeed, the Judge also stressed the fact that no fingerprint of the defendant was found in the flat, in which the defendant was alleged to have been for over an hour, and asked them to take this into their consideration. With or without the karaoke witnesses, these pieces of evidence were always matters that could and should be considered by the jury, and the Judge did direct their attention to them. It is obvious that the jury did not accept these pieces of evidence as sufficient to cast a reasonable doubt on the prosecution's case or evidence of guilt. The evidence of Ng and the other two karaoke witnesses would, in our view, help little to reinforce or strengthen these pieces of evidence, which would normally be considered by the jury on their own merits. Nor would the presence of these pieces of evidence logically help support the point that the defendant had suffered more prejudice by the unavailability of the karaoke evidence. The first ground of appeal therefore fails.

19. The second ground of appeal attacks the Judge's summing up in that he failed to give adequate directions to the jury as to the prejudice caused to the applicant by the lapse of time since the events in question both as a general matter and in particular in relation to the resulting non-availability of the witnesses referred to in the first ground.

20. Our attention was drawn to R v Dutton [1994] Crim L R 910, where there was possible prejudice suffered by the defendant because of the long delay in the charges being brought against him. The Court of Appeal in England referred to AG's Reference and stated that

"This was a case in which it really was incumbent on the judge, having taken the decision he did [ie, the refusal to exercise his discretion to stay proceedings], to point out to the jury that what was said by the defence about the possible prejudice as a result of the delay was a matter to which they could and should properly have regard."

21. In R v John E [1996] 1 Cr App R 88, at p 92G-93B, Lord Taylor CJ delivering the judgment of the Court of Appeal said:

"We are not saying that as a matter of law or as a matter of invariable practice whenever there has been some delay in the case coming to trial the judge must give a jury directions as to the difficulties in which the defence find themselves. Much must depend upon the length of the delay, the cogency of the evidence and the circumstances in the case. We consider that in a case of this antiquity, where the evidence of the complainant was wholly uncorroborated, it was appropriate of the judge to give a direction of the kind we have indicated. His failure to do so in the circumstances we consider was a misdirection. It is on this basis that we allow the appeal."

22. It is therefore clear that a trial judge should in an appropriate case give directions to the jury on the difficulties faced or prejudice suffered, possible or real, by the defendant where an application for stay has been made by the defendant and rejected. The requirement of such a direction, of course, should depend on the circumstances of each case.

23. In the summing up to the jury in the present case, the Judge first said:

"It is hard for anyone to remember what happened a long time ago. Five years is an awfully long time ago."

Later when dealing with the prejudice to the defendant, the Judge said:

"There are some unusual bits and pieces in this case, members of the jury. So I am just looking at how we are going to put this. The next matter I want to go on to is the delay. There has been delay in this trial. Delay, we have heard, was occasioned by an earlier trial, then the Court of Appeal and now a second trial. We do not know if it was somebody's fault. We have heard that the lawyers in the first trial perhaps were not as competent as they should have been; they certainly were not as competent as the pair you have before you. It does not matter who is to blame in fact. The fact is there has been a long delay.

Now, I dealt with that in the context of people not remembering. But there is a second part of that which Mr Harris brought up just before I commenced this address and that is it is hard for the accused, and you can take it into account, that he has been deprived of the opportunity to bring to court, whether or not he had used them is a different matter, but he should, you might think, have had the opportunity to bring to court persons whom he could put forward as witnesses to throw doubt on the case for the prosecution. You do consider your verdict on the evidence before you but you must also consider his case in the light of the fact that delay has made it harder for him to raise doubts in the case for the prosecution.

The accused says 'I was not there when this happened.' It is called an alibi. An alibi is when you claim to be somewhere else at the time that an offence was committed. It does not matter whether someone else comes along and supports that or not. The very fact you say it amounts to an alibi. It is for the prosecution to prove the alibi untrue. The accused does not have to prove it is true. It is for the prosecution to prove it is not true." (emphasis added)

24. Mr Harris submitted that the directions by the judge were inadequate in the circumstances and did not sufficiently assist the jury in determining how they should make allowances given the non-availability of crucial witnesses. We do not agree. It can be seen in the cited passages, especially the highlighted parts, that the Judge pointed out the difficulty faced by the defendant in view of the long delay intervening between the offences and the second trial. The direction emphasised the deprivation of the opportunity for the defendant to call the evidence, which made it harder for him to raise doubts in the prosecution's case.

25. Mr Harris drew our attention to the facts admitted by the parties before the Judge pursuant to section 65C of the Criminal Procedure Ordinance, that "On 1st April 1995 police took a witness statement from a man named Ng Wai-keung. The purpose of the statement was to establish what Mr. Ng had to say about the whereabouts of the Defendant up until about 6 p.m. on 24th December 1993." Mr Harris suggested that in view of these admitted facts, the direction given by the Judge to the jury should be to the effect that the defendant has an alibi witness and if the jury accept the witness's evidence or think it probable, that will destroy the prosecution's case, and that the defendant has been disadvantaged by being unable to get hold of the witness to give evidence on his behalf. This suggested direction is to ignore the fact that the contents of Ng's statement were not admitted into evidence and did not form part of the admitted facts, simply and properly because such contents are inadmissible hearsay. Moreover, in the absence of the statement being produced to the jury, the jury could not speculate as to its contents, and that was what the Judge had asked the jury to refrain from doing generally. It will be noted that the Judge told the jury that they must consider the loss of opportunity to the defendant caused by the delay, but he refrained from intimating to the jury the value or quality of the evidence that was unavailable. That was most proper. All in all, we consider that the Judge used wording that was fair and balanced in directing the jury in the circumstances.

26. Mr Harris complained that the Judge saying "it does not matter whether someone else comes along and supports that or not" was diluting the impact of the remarks in the paragraph preceding the utterance and amounted to a misdirection. We cannot agree. The quoted passage was spoken in the context of an explanation as to what amounted to an alibi. An alibi can be claimed by an accused even if he does not give evidence and no witness is called by him to support his claim or his own evidence on the subject. It must be true that whether or not an alibi is supported by other witnesses, it does not detract from its nature of being an alibi. There is nothing wrong with the Judge's direction. Nor, in the context, does it dilute the effect of the prejudice that the delay had caused to the defendant that the Judge told the jury that they must consider. We do not think the jury could have misunderstood the direction on alibi that the Judge gave in the way suggested by counsel.

27. Mr Harris further complained that the Judge's giving the "lies" direction in the event that the jury did not accept the alibi immediately after the above quoted passages was inappropriate and further distracted from the real point that the defendant had been disadvantaged by the unavailability of the evidence supporting his alibi. We cannot agree. The Judge was telling the jury that if the defendant's evidence on his alibi was not believed, or even if the jury considered the defendant lying in this regard, that did not mean that the defendant was guilty. That was a very fair way of ensuring that the jury understood that it was always on the prosecution to prove the guilt of the defendant, and never upon the defendant to prove anything.

28. For all the above reasons, the second ground also fails.

29. The third ground is that the Judge failed to give adequate directions to the jury as to the significance to the defence case of the absence of forensic evidence implicating the defendant in the commission of the offences charged. This we have dealt with in connection with the first ground about the various items of evidence relied on by Mr Harris, and there is no substance in this third ground.

30. The fourth and fifth grounds, which Mr Harris characterised as secondary grounds, are directed at the Judge's summing up regarding the inconsistencies and contradictions of the police evidence, namely, the evidence concerning the opening of the door of the flat, concerning whether questions had been put to the defendant during the period when he was in police custody, whether a mobile telephone was in his possession upon arrest and whether he gave money to his wife when he was taken to his residence by the police. We do not think it necessary to recite the relevant parts of the summing up save to say that the Judge did direct the jury's attention to all these aspects of the evidence and mentioned the inconsistencies and contradictions to the jury. It is obvious that the jury did not consider them as sufficient to raise any reasonable doubt as to the defendant's guilt. We are not disposed to interfere with the verdict by reason of all these matters which had been put to the jury properly and fairly by the Judge.

31. For all of the above reasons, we must dismiss the application for leave to appeal against the conviction.