HKSAR v. LEE CHI SHING

[English Translation - 英譯本]

CACC 203/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 2012

(ON APPEAL FROM HCCC 409 OF 2011)

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REASONS FOR JUDGMENT

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (Lee Chi Shing) was charged with unlawfully trafficking in 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.  He pleaded not guilty and was tried before Tong J (the trial judge) and a jury.

2.  On 17 May 2012 the applicant was convicted as charged and was sentenced on the same day to imprisonment for 7½ years.

3.  Represented by Mr. Alex Ng of Counsel, the applicant applied for leave to appeal the conviction.  We dismissed the application after hearing, for reasons which we now give.

The prosecution case and evidence

4.  Around 9.30 pm on 4 July 2011, police officers of the Hong Kong Police Narcotics Bureau (PC33410 and PC8195 among them) were carrying out their duties at Exit D of Tsuen Wan West MTR station.  The applicant was then a passenger on board a stationary white vehicle of which his elder brother was the driver. The police officers asked the applicant to get off the vehicle for inspection. He alighted from the vehicle, and then PC33410 took him three to four steps forward to somewhere near the front of the vehicle where PC33410 then conducted a search on him.  PC33410found from the left rear pocket of the applicant’s pants a bag of powder weighing 0.24 kilogrammes and containing 0.21 kilogrammes of ketamine (i.e. the drug involved).

5.  PC8195 conducted a search on the applicant’s elder brother but did not find any contraband, and in the end the applicant’s elder brother was not prosecuted.

6.  PC33410 denied the defence’s allegation that he had indicated to the applicant that the drug involved was found inside the vehicle.  He also denied the allegation that the drug was not found on the applicant himself. PC33410 said that at the material time the applicant was wearing casual pants instead of beach shorts and short pants with no left rear pocket.

7.  Towards the end of the examination-in-chief, the prosecutor asked PC33410 whether he and his teammates had had any grudges against the applicant, and PC33410 answered, “I don’t know him” and “as far as I know, nobody knows him”.  At that point, the defence counsel raised an objection to the said testimony of PC33410, asserting that what he said was hearsay evidence.  The trial judge said he would deal with this matter later, although eventually he did not do so.

8.  PC8195 conducted a search on the applicant’s elder brother but failed to find any contraband.  PC8195 said that he had not personally seen the drug involved, but as he understood it, only one bag of drug was found in the operation.

9.  It was common ground that the drug seized in the operation was 0.21 kilogrammes of ketamine contained in a powder weighing 0.24kilogrammes and that the drughad a retail price of HK$25,440.  The relevant report prepared by a Government Chemist was produced to the court on the basis of the admitted facts.  Apart from laboratory test results relating to the bag of drug involved in the present case, the said report also contained test results of nine other bags of ketamine.  It was also common ground that no fingerprints of forensic value were found on the bag of drug involved and that the applicant did nothave any criminal record in Hong Kong.

10.  Apart from the evidence pertaining to the arrest of the applicant and the seizure of the drug involved, the prosecution also alleged that the applicant had made an admission.  After a voir dire hearing and having considered the evidence of the relevant police officers and of the applicant, the trial judge refused to admit the said admission as evidence.

11.  Having ruled that the applicant’s admission could not be adduced as evidence and before the prosecution opened its case, the trial judge expressed concerns over the consequences of placing the applicant’s admission before the jury.  This led to the following conversation between the trial judge and counsel for both parties:

“Judge: Regarding the hearing tomorrow, there are a few points to which I would like to draw your attention. First, following the ruling [made on the voir dire], the focus is now on the circumstances in which the drug was found, which means both the prosecution and the defence should no longer make any reference to what was said under caution. That is the first point. Second, I would like to mention here that, sometimes, in the middle of the trial, the defence would – without what was going on in its mind being known – suddenly turn round and want to refer again to what happened during the interview. But as the court has already given a ruling at the request of the defence, the relevant evidence is – that is to say, the court has already made a ruling in this respect, so if you go back and say that a certain point has to be raised again at some stage, the defence will have to give this some thought: it’s not just one or two points that you want to raise, and the defence may suggest – the prosecutionwill say that, this being the case, the context should also be made known to the jury. I am just briefly mentioning this, I am not saying that the defence [in the present case] has this intention.

There is one matter of which the defence had made passing mention when dealing with the issue of arrest and which I am now bringing up for the sakeof the progress of the trial. If there is an issue over the pants/shorts – of course I am not saying the defence has to tell me now what their defence is, but if there is an issue over the pants/shorts – I believe that the pants/shorts have already gone to … been returned to the defendant, and so the prosecution does not have them. But if you are saying there are certain so-called issues over the pants/shorts which have to be dealt with, please do not bring them up only at that stage by saying that I want to raise them and seeking to adjourn the case for half a day or one day to obtain the exhibit and so forth. This is what I want to point out.

On the other hand, as I see it, there is one possible scenario in the present case, that is, the prosecution might have made certain arrest on the basis of certain information which it had. But in this respect you have to see what decision the defence makes for itself. If you want to conduct cross-examinations in this respect, please be cautious, because I do not want to find, in the middle of the examination but not earlier, that you are telling me there is some information which is embarrassing to or biased against the defence and which will then have to be dealt with. If the defence decides there are questions to be asked in this respect, perhaps please notify the court so that the issue can first be discussed in the absence of the jury before it is dealt with.

These are the points I want to raise. Are there other matters we should discuss before the trial?

Mr. Kwan: On the second point that your Lordship has just mentioned, I may have to consider it thoroughly and seek instructions – that is the point about the defence wishing to revisit certain issues dealt with in the voir dire.

Judge: Mr Kwan?

Mr. Kwan: Yes, yes.

Judge: I am not counsel representing him …

Mr. Kwan: Mm.

Judge: My point is to tell you that other people had done it before.

Mr. Kwan: Yes, I understand.

Judge: Actually, this approach is essentially improper. If you think there are certain matters in the voir dire which should in fact be brought to the attention of the jury, then we should not have conducted the voir dire and should instead have gone through the whole matter before the jury and you could have pointed out what you thought was advantageous to him. But now that you have chosen the other approach, I think that those matters should, basically speaking and in principle, be irrelevant. But if, having been reminded, it now occurs to you that “Ah, that’s right” – so, that is not what I intended, that is what I am worried may happen, but this is something you have to consider for yourself.

Mr. Kwan: Yes, your Lordship.

Judge: But I do not want to have to consider these digressive matters at that stage but not before.

Mr. Kwan: Understand, understand.

Judge: Yes.

Mr. Kwan: Yes, yes, this …

Judge: Actually these matters should have been considered long ago.

Mr. Kwan: Yes, yes, I thought about this point before your Lordship made the ruling, so I – now that I have the benefit of a reminder by your Lordship, I have a better idea about this.

Judge: Mm.

Mr. Kwan: Yes, I will clearly explain this point to the defendant, right.

Judge: Mm. Of course, if you have – some submissions to make, saying there are certain aspects which the court should consider, then I of course will listen to you – to hear what you have to say, and in that case perhaps a relatively simple introduction can be made at the opening of the case, and if a complex legal issue does exist, then we will deal with it. This will be better than having ourselves completely tied up right at the opening of the case and will, I think, be more conducive to the progress of the trial.

Mr. Kwan: Yes, your Lordship. In light of your Lordship’s ruling, I think some amendments may have to be made to the openingof his case, so what I would like to know is – I mean the stance of the prosecution –how the opening case tomorrow will be, I just hope to know about it a bit earlier.

Mr. So: Our opening case ...

Judge: It should be that they went to where you were and intercepted the vehicle...

Mr. Kwan: A little bit has been deleted, yes, that is a little bit has been deleted.

Mr. So: That means merely describing the circumstances at the scene and what was found upon search.

Judge: That is correct.

Mr. So: And the part concerning the verbal admission is …

Mr. Kwan: As well as what followed.

Judge: Right, say he was arrested and where certain items were found upon search.

Mr. So: Right, he was arrested, right, that’s it.

Mr. Kwan: Right, and the customers all left afterwards, afterwards.

Judge: Right, so approximately how many witnesses do you have?

Mr. So: For myself, in fact in the present case I actually have one witness only, but I have no idea how many defence [witnesses] we will have to tender for cross-examination.

Judge: I have no idea either.

Mr. So: Yes, I will liaise with them later, yes, yes.

Judge: What if I leave it to them to … because it seems that they … as they mentioned in their submissions, other persons on their side did not see [what happened].

Mr. So: Yes, yes, yes.”

The defence case and evidence

12.  The defence case was that the drug involved was not found on the person of the defendant upon search. At the material time, the applicant was wearing a pair of beach shorts with no left rear pocket.  The defence alleged that PC33410 had indicated to the applicant that the drug involved was found inside the vehicle, and that PC33410 lied in order to frame up the applicant.

13.  At trial, however, the applicant neither gave evidence nor called any witness.

The trial judge’s directions to jury

14.  The trial judge gave the jury a detailed explanation on the facts of the case and the relevant points of law.  He reiterated the stance of both parties.  He also specifically reminded the jury not to draw any adverse inference against the applicant on the ground that the applicant himself had not given evidence or called other witnesses for the defence.

15.  The trial judge reminded the jury the fact that the applicant had no criminal record and was of good character, and told the jury that it was a fact on which they should take a view favourable to the applicant and which served to indicate it was less probable for the applicant to commit the offence.

16.  The trial judge also pointed out that, if the jury considered that PC33410 was not veracious and reliable and that the drug involved was not found on the applicant or was probably not found on him, or if they considered that the applicant had no knowledge of the nature of the drug, then they were bound to return a verdict of not guilty.

17.  Regarding one of the agreed facts, namely that the drug involved and its packaging did not bear any fingerprints of forensic evidential value, the trial judge did not give any separate directions to the jury.  He only repeated PC33410’s statement that to his knowledge there was no police officer who knew the applicant.  No further direction was given to the jury apart from this.

Grounds of appeal

18.  Mr. Ng, Counsel for the applicant, raised three grounds of appeal:

(1) The speech made by the trial judge before the prosecution opened its case had led the applicant to wrongly decide not to give evidence in defence or call witnesses, the reason being that the trial judge had improperly restricted the issues that the defence might raise at the trial proper.  Mr. Ng pointed out that as a result of the trial judge’s view that no reference should be made again to the voir dire, the defence had not been able to fully present its case before the jury as well as to challenge the testimony of PC33410;

(2) As regards PC33410’s testimony that to his knowledge no one was acquainted with the applicant, the trial judge had failed to point out to the jury that such testimony was hearsay evidence and, as such, could not be taken as evidence of the alleged fact.  Furthermore, the trial judge’s reiteration of such testimony to the jury had the effect of reinforcing the suggestion that the police officer had no reason for lying in order to frame up the applicant; and

(3) The trial judge had neither asked the jury not to allow themselves to be influenced by the reference in the Government Chemist’s report to large quantities of drugs similar to that involved in the present case, nor directed the jury not to draw any adverse inference against the applicant by reason of the content of the said report.

Discussion

19.  The bag of drug involved in the present case was sent to the Government Laboratory together with nine other bags of ketamine which were irrelevant to the present case.  It is highly likely that they were all sent to the Government Laboratory in one lotby the police for the sake of convenience.

20.  We agree that the approach of sending drugs involved in different cases to the Government Laboratory together instead of separately is open to question. The prosecution only has to adduce such evidence as is relevant to the case, and the drug relevant to the present case was merely one bag of ketamine allegedly found on the applicant.  The other drugs had nothing to do with the present case.  The police should have dealt separately with drugs involved in different cases, and the prosecution should not have submitted to the court the laboratory test reports of other drugs together with the report of the drug in question, which would only complicate the matter.  In our view, the approaches adopted by both the police and the prosecution should be rectified.

21.  Having said that, in dealing with this appeal, the Court is not concerned with whether a certain approach adopted by the police or the prosecution was entirely proper or not.  Instead the Court is concerned with whether the conviction should be quashed for being unsafe or unsatisfactory, or whether the first instance judgment should be quashed by reason of an erroneous decision on a point of law, or whether there was any material irregularity in the course of the trial (see s. 83 of the Criminal Procedure Ordinance (Cap. 221)).

22.  The prosecution’s stance was clearly that only one bag of dangerous drug was found on the applicant.  The parties also agreed that the bag of drug was 0.24 kilogrammes of a powder containing 0.21kilogrammes of ketamine.  The jury must certainly have been aware of the prosecution’s stance and those facts which were not in dispute.

23.  This being the case, the relevant Chemist’s report, which provided no further relevant evidence at all, did not necessarily have to be adduced again as evidence.  If it was necessary to adduce the report as evidence, the contents thereof concerning the other nine bags of ketamine should have been deleted. Nonetheless, the laboratory test results in the report which related to drugs irrelevant to the present case would not have affected the jury’s verdict, because they were aware that the present case only involved one bag of 0.24 kilogrammes of a powder containing 0.21 kilogrammes of ketamine.

24.  In our view, improper as it was, the above approach was neither amaterial irregularity nor an erroneous decision in law.   Nor did it affect the conviction which was safe and satisfactory.  Therefore it does not constitute a ground for quashing the conviction.

25.  We also cannot ignore the fact that the above improper approach was taken with the consent of the defence.  It is therefore not open to the applicant to rely on that approach insupport of his application for leave to quash the conviction.

26.  During the examination-in-chief of PC 33410, the prosecutor asked him whether the police officers held grudges against the applicant.  The prosecutor’s purpose in asking this was very clear: anticipating that the defence would allege that the police had implanted the exhibit to frame up the applicant, the prosecution intended to take a proactive approach by leading evidence that PC 33410 and other police officers did not know the applicant and held had no grudges against him, and hence they had no reason to frame him up.  The relevant dialogue between the prosecutor and the police officer was as follows:

Question: Mr. police officer, do you have any grudges against this defendant?

Answer: I don’t know him.

Question: As far as you know, did your team of police officers have … any grudges against him?

Answer: To my knowledge, no one knows him.

27.  At that time, Counsel for the applicant pointed out that the reply of PC33410 that “To my knowledge, no one knows him” was hearsay evidence and therefore should not be adduced before the jury.

28.  Had the defence alleged that the police had the motive to frame up the applicant because a police officer had had grudges against him, then in questioning PC33410 the defence would have raised questions regarding the identity of the police officer who had grudges against the applicant and the police officer’s motive for framing up the applicant, and then the prosecution would have been allowed to respond as appropriate.  By the time of the examination-in-chief of PC33410, the defence still had not raised the point before the jury that the police had the motive for framing up the applicant and that they did do so.  At that stage the prosecutor should not have taken the proactive approach of anticipating the defence’s stance and raisingmatters which were irrelevant to the issues in existence at that time and which were merely peripheral.  The prosecutor’s approach was improper, not because the answer given by PC33410 was hearsay evidence, but because the said matter should not have been raised during the examination-in-chief of PC33410.  And the trial judge should have dealt with this matter immediately by pointing out the impropriety of what the prosecutor did.

29.  Having said that, in our view, in light of the background to and issues involved in the present case, the prosecutor’s improper approach in raising peripheral issues at an inappropriate stage and the failure of the trial judge to deal with the matter immediately were neither here nor there and would not have rendered the conviction unsafe.

30.  We cannot ignore the fact that at trial the evidence against the applicant came solely from PC33410.  He made an oath before giving evidence, confirming that his evidence would be the truth and nothing but the whole truth.  The jury would definitely have considered whether PC33410 was a veracious and reliable witness.  The trial judge had repeatedly reminded the jury that, if they took the view that PC33410 was not veracious and reliable and that the drug involved had not been found or possibly was not found upon search on the applicant as alleged by PC33410, then they were obliged to return a verdict of not guilty.

31.  This being the case, the fact that the prosecutor had improperly led evidence that there were no grudges between PC33410 and the applicant and that “nobody knows him” was neither here nor there and did not affect the safety of the conviction.  This does not constitute a valid ground of appeal.

32.  The prosecution alleged the applicant had made an admission after his arrest, but the trial judge ruled that such admission could not be adduced as evidence. The background to the case showed that, on the basis of certain information, the prosecution kept the applicant under surveillance and then arrested him, and after the arrest the applicant made an admission.  Were such information to be fully disclosed to the jury, the applicant would very likely suffer prejudice and the trial might have to be suspended and a new jury empanelled.  The dialogue between the trial judge and the defence counsel before the prosecution opened its case merely showed that the trial judge was voicing his concern that the above situation might arise.  The trial judge reminded the defence counsel to act cautiously to ensure that no evidence which would be prejudicial to the applicant, and which therefore should not to be disclosed to the jury, would be adduced.  The trial judge expressed that he only wished that the defence would carefully consider the matter.  The defence counsel also agreed with the trial judge and indicated that only facts such as what was found at the scene and the applicant being arrested for that reason would be raised, in order to avoid evidence prejudicial to the applicant coming into the picture.

33.  It is true that, during the cross-examination of PC33410, apart from alleging that he had framed up the applicant, the defence could, for the purpose of testing his credibility, also put it to the witness that when he arrested the applicant he assaulted him and took him somewhere, without necessarily having to mention that the applicant had made an admission. Even if the point about the applicant having made an admission had to be disclosed to the jury, the trial judge could have given directions to the jury as appropriate.  It was for the defence to consider and decide how to deal with the above issue.  If the defence considered it necessary, for the purpose of testing the credibility of PC33410, to point out to the jury that in arresting the applicant PC 334110 had acted improperly and taken the applicant somewhere, the defence could have insisted on taking this course of action and made that clear to the trial judge.

34.  It is the duty of a trial judge to ensure that the trial proceeds smoothly and effectively and, to that end, the judge is entitled to issue such reminders to both the prosecution and the defence as he deems necessary and appropriate(see, for example, HKSAR v Miyashita Akira CACC 624/1996 andHKSAR v Wong Kay Din CACC 322/1998). If the parties take the view that a reminder given by the judge shows that he misunderstands the crux of the case or that his view is misconceived or unfair to both parties, they should try their best to fight for their position, and they have a duty to make their position and views known to the judge and also request the judge to and ensure he does make a correct ruling. If either party has not tried its best to fight for its position at trial, it cannot thereafter seek to appeal and overturn the original judgment on the ground that it has been influenced by the court into making certain decision which it subsequently considered inappropriate.

35.  The trial judge was entitled to comment on matters and express the hope that the defence would direct its attention on certain matter(s).  At trial the trial judge had indicated clearly to Counsel for the applicant that “this is something you have to consider for yourself”, and Counsel for the applicant also indicated that “I may have to consider it thoroughly and take instructions”. The trial judge had not mandatorily required the defence to deal with the matter in any particular way; indeed he had not expressed a stance on the matter.  In giving the reminder, the objective of which was to ensure that the trial could proceed smoothly, the trial judge was acting properly.

36.  At trial, in the course of questioning PC33410, Counsel for the applicant did not in the end raise the applicant’s allegation regarding his having been beaten up when boarding the vehicle as well as the incident inside the canteen at Tsuen Wan Police Station.  This was a decision made bythe defence after careful deliberation.  The reminder given by the trial judge had not prevented the defence from stating its case fully and hence does not constitute a ground of appeal to that effect.

37.  We have considered and rejected the grounds of appeal put forward by Mr. Ng of Counsel.  We find nothing unsafe or unsatisfactory in the applicant’s conviction.  We have therefore dismissed the applicant’s application for leave to appeal the conviction.