HKSAR v. LAM KING YIN

CACC 162/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 162 OF 2014

(ON APPEAL FROM HCCC NO 576 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was tried in the High Court before Line J and a jury on an indictment containing a single count of trafficking unlawfully in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The Particulars of the Offence alleged that on 1 June 2012, at Cheung Shan Estate Road West, Cheung Shan Estate, Kwai Chung, the applicant trafficked in 0.24 kilogramme of a powder containing 0.21 kilogramme of ketamine.  On 28 April 2014 the applicant was convicted by the verdict of the jury and was sentenced to 8 years’ imprisonment.

2.  The applicant applied for leave to appeal his conviction.  At the hearing of his application we dismissed it and said we would give our reasons for doing so at a later date.  This we now do.

The trial

The prosecution case

3.  Around 20:25 hours on 1 June 2012 the applicant was seen by two police constables sitting at the rear seat of a taxi parked opposite to Cheung Shan Estate with its hazard lights on.  The two police officers approached the taxi, each on either side of it, and they then opened the rear doors of the taxi at the same time.  The applicant threw a green sealed tea packet marked with the characters “Teet Gwun Yum” at one of the officers which hit him and then rebounded onto the seat.  The officer controlled the applicant and seized the tea packet.  The tea packet was examined and found to contain the dangerous drug that is the subject of the count in the indictment.  It was an admitted fact that the street value of the dangerous drug at the time of the offence was HKD27,600.

4.  In answers he gave under caution, and in a subsequent video interview, the applicant denied having knowledge of the dangerous drug inside the packet.  He said that he was asked by his friend Ah Ching to go to the Cable TV Tower by taxi and whilst waiting there for someone, a person unknown to him approached his taxi and threw the green packet onto the taxi’s rear seat.  He was then asked by Ah Ching to go to Cheung Shan Estate and wait there.  He said he did not touch the packet or pick it up to look at it and had no knowledge of its contents.

The defence case

5.  The applicant testified in the defence case but called no other witness.  In his evidence, the applicant essentially maintained the version given in his pre-trial statements to the police that he was an innocent courier unwittingly used by others.  He said that he was unemployed at the material time and someone called “Ah Ching”, whom he knew from another friend, offered him work of an unspecified nature. He met up with Ah Ching at 7 pm on 1 June at Fuk Loi Estate, Tsuen Wan and was subsequently asked by him to take a taxi to Cable TV Tower where his partner would provide the applicant with work.  He took a taxi to the Tower and in the course of the journey Ah Ching called him and told him that his partner would board the taxi at the Tower. 

6.  On arrival at the Tower the applicant waited for a few minutes and then a young man, whom he did not know and to whom he did not speak, opened the rear door of the taxi and dropped a packet on the back seat.  Without uttering a word this young man then left.  The applicant said he at no stage ever touched or examined the packet. 

7.  Upon the further telephone instructions of Ah Ching, the applicant asked the taxi driver to go to Cheung Shan Estate.  En route the applicant received telephone calls from an unknown person saying he was Ah Ching’s friend and he would be waiting for the applicant at the bus stop at Cheung Shan Estate.  When the taxi arrived at the bus stop, the taxi driver turned on the hazard lights and asked the applicant to tell his friend that the taxi lights were on.  The applicant telephoned both the unknown person who had previously called him and Ah Ching. 

8.  Within 1-2 minutes two police officers came from the opposite side of the road and opened the door of the taxi.  They were in plain clothes and the applicant said he did not know what was happening and so he picked up the tea packet randomly and threw it at the police officers. 

9.  The applicant denied any knowledge of the contents of the tea packet.  The defence contended that the applicant had been cynically used as an innocent courier.  It was suggested that only an innocent courier would have let the taxi driver park the taxi with the hazard lights flashing; a drug trafficker would not wish to draw attention to himself and would have told the taxi driver to turn the hazard lights off.

The incident in the course of the applicant’s testimony

10.  At the outset of the applicant’s evidence in-chief, his counsel Mr Egan, led evidence from the applicant that he had worked in the elevator industry since 1998.  Defence counsel then asked his client:

“Q. So this you would make it 16 years?”

To which the applicant replied:

“A. Right. You may say so.”

11.  But this was not correct as in this period the applicant had been in and out of prison for different periods totalling 40 months and had also been in Drug Addiction Treatment Centre.  The way counsel led this background information from his client suggested that the applicant had been in 16 years continuous employment.  This caused the judge to be concerned that the applicant might have gained an unfair advantage in respect of his character.  

12.  The judge alerted counsel to his concern and invited them to consider what should be done in respect of it.  Though this was done in the absence of the jury, the applicant was, of course, present and would have heard the judge upbraiding his counsel and accusing him of deliberately misleading the jury as to the applicant’s character.  What impact this had upon the applicant is not known, but it is the contention of Mr Paul Leung, who appears for the applicant, that it would have led the applicant to perceive that the judge was hostile to him.  Be that as it may, as the cross-examination of him progressed, the applicant, on three occasions, gave emotional speeches in which he revealed the fact that he had a criminal record and had spent time in prison.  He said:

(i) “I know you want to accuse me.  You want to make up something.  But the point is it’s not fair.  Even if I committed this crime.  Even if I have served certain sentence in the past, it can’t prove that I am a bad person.  Even if I have been to prison, it doesn’t mean that I committed trafficking in dangerous drugs.  There’s no need for the judge to stay here in order to put me to death.  It’s okay even if you sentence me.  But I just want fairness in the court.”; and

(ii) “Since I prepared myself that I will not go out freely from the court, but the point is that even if I lose this case, I will not admit the guilt.  If I did not do that, I will not admit.  Even if I have to receive a sentence and I understand that this judge will not let me go, it’s fine if he thought that I’m a bad person, it’s okay.  Even if you read out my criminal record, even if you sentence me in whatever way, it is okay.  It’s very simple.  But if I did not do that, I did not do that.  Now, because of this case, my wife left me, my children left me ‑ I lose my children, my son and, you know, the petition for divorce is just downstairs of this building.  I don’t mind if I have to serve a few years of sentence here.”; and

(iii) “… But the point was that I want to say to the jurors that even if I got the criminal record, I just want to prove or I want to ‑ want you to know whether I was a bad guy or not.  Even if I got the criminal record, I told you that I had been working on elevators for 16 years and if you think that I was misleading the jurors that I was a good person, all right.  If you think I’m a good person in this case, you should give a verdict of not guilty.  Even if I had a criminal record of that kind, you should not think I must be a bad guy in this case.  Even if I’m not a good person, it doesn’t mean that I was involved in this case.  I just want to make it clear that and I hope you know the truth, what is right, what is wrong.  If you think that I should be guilty, I will face the truth to receive the sentence.  I know even if I lost, I lost a lot of things.  Thank you.  Apart from this, I would like to say something more.  I have ever – I have been sentenced once before, because this is a retrial.  The reason why this case should be retried again, because last time the judge forced the jurors to suppose that I was guilty and I should be the one who proved my innocence.  But then when the case came to an end, the verdict was guilty by 5 to 2.  Do you know the reason why this case could be brought for an appeal and then brought back to the court for trial?  Because the level of proving the case could not be met and the juror should have a fair verdict of this case.  Thank you.”

13.  These unexpected outbursts of the applicant led to discussions between the judge and counsel about the directions he should give on the applicant’s criminal record.  Mr Egan was aware that one of the consequences of the applicant revealing his criminal record was that the jury might be impressed by his frankness and be more inclined to accept his evidence because he was effectively saying that although he had committed other crimes in the past he did not commit this one.   

14.  Mr Egan then made it clear that he was not going to make any application for a mistrial and a retrial because he was of the view that the applicant had deliberately adopted this course as the way he wished to conduct his trial and so there would be no basis for such an application.  Mr Egan emphasized that he wanted to put his position on the record. 

15.  The judge explored with counsel the way in which the direction on character should be given.  The judge suggested alternatives.  He could give the jury a brief and simple direction in effect telling them to ignore the applicant’s character and not take the evidence of it into account in deciding the issues in the case.  The alternative was to give the same direction but by reference to the context of what had happened in their absence and how that may have prompted the applicant to speak out.

16.  Mr Egan opted for the first alternative as he was of the view that the less that was said about the context the better.  He told the judge:

“I think the mischief is the more we refer to the specifics, the more they’ll recall what was said whereas I suspect a great deal of it or some of it at least has gone over their heads.”

17.  The matter was concluded with the following exchange between the judge and Mr Egan.

“Court : Right. As I say, I’m keen to do anything that in effect will sort out the mess in a way that’s fair to everybody.

Mr Egan :  Having reflected upon that, the less said, the better.”

18.  Thus, it was agreed that the judge should do no more than say that the applicant’s past conduct was not a matter that would assist the jury in deciding the issues in the case and they should ignore it.

19.  Pursuant to this agreement with Mr Egan the judge directed the jury in respect of the applicant’s evidence as follows:

“     You will remember he delivered a speech to you in which he said that even if he had a criminal record it did not mean that he committed this crime. It may be you take his frankness as displaying sincerity, or you may be tempted to hold that against him.

     The former is permissible, but the latter is not. He did not choose to go into any detail about any criminal record so you know nothing about it, and it is a general principle of our system that proof of a crime depends on there being sufficient evidence of it, and merely being able to say that someone has a criminal record does not add to that in any way.

     That is my direction to you. Do not hold that reference to a criminal record against him as being any indication of guilt.” (Emphasis added)

Grounds of appeal against conviction

20.  In his Amended Perfected Grounds of Appeal against conviction Mr Leung advanced the following grounds of appeal on behalf of the applicant:

(1) The trial judge failed to discharge the jury after the jury learned of the applicant’s criminal record, albeit it was disclosed by the applicant himself;

(2) The trial judge failed to give an adequate direction in his summing up on the relevance of the applicant’s criminal record in that he failed to:

(i) Direct the jury that they must not assume that the defendant is guilty or that he is not telling the truth because he has previous convictions;

(ii) Direct the jury that his previous convictions are only relevant as to whether or not the jury can believe him; and

(iii) Direct the jury that they do not have to allow these convictions to affect their judgment;

(3) The trial judge failed in his summing up to give adequate direction on the applicant’s knowledge of the contents of the container, in that he failed to direct the jury that failure to take an opportunity to inspect cannot be, or may be, equated with knowledge of the contents;

(4) The conviction was unsafe and unsatisfactory.

Discussion

21.  We should say at the outset that we well understand the judge’s concern at the way the evidence of the applicant’s employment was led.  He was right in saying that a fair trial involves fairness to the prosecution as well as the defence and to be anxious that the jury not be misled by the way the evidence had been adduced.  However, the judge made clear that he was not interested in casting blame, but only in taking corrective action and he wanted to involve counsel in determining what that corrective action should be.  He did so because he was keen to be fair to the applicant in reaching the proper outcome.  The judge’s delay in taking immediate action was well intentioned and motivated by a desire to act fairly. No one could have anticipated the applicant taking matters into his own hands and revealing his criminal past. 

22.  Once, the jury became aware of this information the judge correctly recognized that there was a problem that needed to be addressed and that this would require him to give a direction to the jury.  Again, very properly, he engaged counsel in the process of determining the content of his direction.  The direction required by the judge would have to be tailored to the context of the trial and a very important part of that context was the instinctive feel of these experienced counsel and judge as to the forensic impact of what had occurred.  As set out earlier in this judgment, Mr Egan assessed that some of what had been said had gone over the jury’s heads and that the better course for the applicant was for the judge to say as little as possible about what had occurred. 

23.  Any appellate court would be slow to conclude that those who had the best “feel” for what was needed erred in that assessment, especially so where the counsel and judge involved were as experienced as those participating in and presiding over this case.

24.  Relevant to this we note that Mr Leung, in response to an enquiry from the court, positively eschewed any reliance upon criticism of the competence of trial counsel. 

25.  This brings us to the first ground of appeal. Mr Leung is certainly correct to say that whenever a defendant’s bad character is wrongly revealed to the jury, one of the options available to the judge is to discharge the jury.  But, whether that option is the appropriate one will always be a fact sensitive question and no hard and fast rule can be laid down in respect of when it should be exercised.  However, what can be said is that it is not an option to which a judge will automatically have recourse but one which he will choose only when he determines that it is impossible through other means to ensure that the defendant will receive a fair trial.

26.  Mr Leung recognizes the merit in the stance that Mr Egan adopted at trial that, given the applicant had made a considered decision to reveal his criminal past, it would be difficult to apply for a mistrial.  Mr Leung accepts, and quite properly so, that the fact that the revelation of bad character was brought about by the applicant himself is a factor that the judge could take into account in determining whether to exercise his discretion to order a retrial.

27.  In R v Sutton (1969) 53 Cr App R 504 the English Court of Appeal was dealing with the situation of one accused revealing matters of bad character of a co-accused.  Recognizing that there was no general rule that a mistrial had to automatically follow the revelation of evidence of bad character and recognizing that whether to declare a mistrial was an exercise of discretion by the trial judge, the Court of Appeal said at page 513 of its judgment: 

“… we would certainly be slow to lay down as a general rule that where one co-defendant says something of this nature about his co-accused, a judge must automatically allow a fresh trial, because it would simply make it too easy if a trial is not going well for one accused to say something which would secure his co-accused the advantages, if they are advantages, of a new trial. But, in our view, in the result there was an exercise of discretion by the trial judge, and the Court is always slow to interfere with such an exercise of discretion.”

28.  The more so where the author of the revelation of the accused’s bad character is the accused himself and he has deliberately, not inadvertently, disclosed it as a carefully considered tactical response to matters occurring in the course of his trial. 

29.  We have no hesitation in concluding that this was not a situation where the judge had to conclude that the applicant could not receive a fair trial.  There was no error by the judge in determining that the appropriate way to deal with the issue was by a direction to the jury. There is no merit in the first ground of appeal.

30.  That leaves as the only issue arising from the applicant’s revelation of his bad character, the question of whether the judge’s direction was sufficient in the circumstances of this case.  Mr Leung argues that given the importance of the applicant’s credibility to his chance of achieving an acquittal it was vital that the judge direct the jury not only that they could not use the evidence of the applicant’s bad character against him but that, specifically, they could not use it for the purpose of assessing his credibility.  In this respect Mr Leung relies on case law to the effect that when a trial judge determines an application to allow in evidence of bad character for a particular purpose, he must instruct the jury on the purpose for which they may use this evidence.

31.  However that was not the situation in the present case where the judge was directing the jury not to make use of the evidence for any purpose adverse to the applicant.  In our view the only question is whether that message was sufficiently conveyed by the direction given by the judge.

32.  We are satisfied it did.  To fully appreciate what it was the judge was saying it is necessary to refer to the way in which Mr Egan decided to dovetail the bad character evidence with the applicant’s defence and in fact turn it to his advantage.  The applicant’s defence was that he had been set up by others.

33.  In the course of discussing with the judge how he should respond to the issue of the applicant’s revelation of his bad character, the following exchange took place with the judge:

“MR EGAN: But it seems to me one of the questions of course that I would have to consider is ‘well, where do I go from here?’ because he has basically put his character in issue in the most unconventional way not by suggesting he is a person of good character but quite the contrary suggesting ‘I am a villain, I’ve got criminal convictions, I’ve done gaol time but, believe me, I didn’t commit this offence’. So he has used it in a very unconventional, perhaps even a clever way to sort of say to the jury, ‘Well, yes, I’m a naughty boy but I didn’t do this one.’ Right? And he is using that. So...

COURT: That’s quite an effective piece of advocacy.

MR EGAN:  Not a bad tool.”

34.  In his closing address to the jury Mr Egan in fact pursued this theme.  He said:

“And then you heard the evidence of the defendant himself. He became very angry during the course of giving his evidence. What he effectively said to you was ‘I have not always been a good man. I’ve been in trouble before’ and he actually said to you, ‘But I did not know that I was in possession of these drugs, I did not commit this offence’. He actually said to you, ‘If I had committed this offence, I would have pleaded guilty’.”

35.  This was why the judge, in directing the jury, did not tell them to simply ignore completely the bad character evidence or to give them a blanket prohibition on any use they may make of it.  He specifically allowed them to make use of it in assessing the applicant’s credibility but only in a favourable way.  Hence his direction:

“It may be you take his frankness as displaying sincerity, or you may be tempted to hold that against him.

The former is permissible, but the latter is not.”

36.  This was the judge’s direction on credibility and it was clearly carefully tailored to be consistent with the defence case.  His direction on propensity, or the probative value of the bad character evidence, came at the end of the credibility direction when he said:

“That is my direction to you. Do not hold the reference to a criminal record against him as being any indication of guilt.”

37.  We are satisfied that the judge’s direction to the jury was sufficient in the circumstances of this case.  It was carefully constructed so as to be consistent with the defence case and to enable the defendant to take what benefit he could from what had happened without, at the same time, suffering any adverse consequence from it.

38.  There is no merit in the second ground of appeal.

39.  The third ground of appeal arises out of the applicant’s evidence that he did not inspect the tea packet.  It is submitted that the jury should have been given a constructive knowledge direction[1] in order to avoid them convicting the applicant on the basis that he must have suspected, as opposed to actually known, that the packet contained dangerous drugs.

40.  A judge’s directions are tailored to the evidence in the case and the issues arising from that evidence.  In identifying the issues arising from the evidence the judge does not consider every theoretical possibility, but takes a realistic view of the case.  That realistic view is formed by also taking into account how the prosecutor presents his case and how the defendant defends it. 

41.  Here, it was never suggested that the applicant did not know, or may not have known, what was in the tea packet and was deliberately shutting his eyes to the obvious.  Rather, what was being suggested by the prosecutor was that the inherent implausibilities in the applicant’s evidence made it incredible and the jury should disbelieve it.  Once the jury put the applicant’s evidence to one side and focused on the prosecution evidence they could be satisfied beyond reasonable doubt that the applicant knew the tea packet contained dangerous drugs.  Throughout the trial the prosecution case was based upon an allegation of actual knowledge.

42.  Not surprisingly therefore, the respondent argued that when a trial proceeds on the basis of actual knowledge it is not necessary for the trial judge to direct the jury on constructive knowledge.  The applicant relied on the judgment of this court in HKSAR v Law Wai Choi[1997] HKLRD 555 and the respondent on judgments in HKSAR v Yang Yulan [2013] 4 HKLRD 170 and HKSAR v Bian Zhenju,CACC 471/2012, unreported, 13 December 2013 and submitted that the present case was not one of the rare cases that required a “shut-eye” direction to the jury.

43.  From the cases cited by the respondent the law is quite clear.  A direction to the jury on constructive knowledge should not be given as a matter of course, but only where the rare circumstances of a particular case require that it be done.  Those circumstances will generally be where it is clear from the evidence and the way the defence contested the case that the defendant harboured suspicions about the circumstances in which he found himself but sought to avoid the consequence of knowing too much by not asking any questions for fear of the awkward answers he might get.  In this situation the commonsense response of the law is that the defendant well knows what is going on and is simply avoiding obtaining confirmation.  An attitude of “don’t tell me what I can’t afford to know” will not enable him to escape criminal liability for his actions.

44.  But that situation is not one that arises very often in drug trafficking cases and so it is only rarely that such a direction is warranted.  In HKSAR v Yang Yulan [2013] 4 HKLRD 170 Barnes J, giving the judgment of the Court of Appeal, said at page 176 paragraph 25:

“Since ‘constructive knowledge’ is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to suspicious circumstances, it is not appropriate for judges to give general directions to the jury on ‘constructive knowledge’.”

45.  The standard situation, such as the present case, where the prosecutor invites the jury to disbelieve the defendant and infer actual knowledge from the prosecution evidence, is not a case calling for such a direction.

46.  Here, the judge was correct not to give a constructive knowledge direction as the circumstances of the case did not require it.  All that was required were the standard directions on the burden and standard of proof with emphasis on the need for the jury to be satisfied so that they were sure on the issue of knowledge and that nothing less than this would suffice; specifically that suspicion does not equate to knowledge and that actual knowledge must be proven.  These directions the judge gave.  There is nothing in this ground of appeal.

Conclusion

47.  For these reasons we dismissed the application for leave to appeal against conviction.

[1] Sometimes referred to colloquially as a “shut eye” or “blind eye” direction.