HKSAR v. YUEN YU KIN

CACC 114/2015

[2018] HKCA 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 114 OF 2015

(ON APPEAL FROM HCCC NO 188 OF 2014)

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R E A S O N S   F O R   J U D G M E N T

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

1.  Before Andrew Chan J and a jury, the applicant was convicted after trial of trafficking in 960 grammes of ‘ice’ for which he was sentenced to 21 years’ imprisonment.  He sought leave to appeal against his conviction.  At the conclusion of the hearing, we gave the order set out in the last paragraph of these reasons for judgment.

Respective Cases of the Parties

2.  As can be seen from the judge’s summing up, the respective cases of the parties were straightforward :[1]

“ The prosecution case is that on the material day, the defendant, knowing that dangerous drugs would be placed inside a basketball in the vicinity of Yue Man Square Park, he went there to collect the basketball. He knew that dangerous drug was there. He deliberately picked the basketball up. The prosecution further contended that since the quantity and the value of the drug was substantial and valuable, therefore the dangerous drug that the defendant picked up would be used for further dealings.

The defence case is that on the material day, the defendant went to Yue Man Square Park simply to meet a friend, Wah Gor.  They were going to have tea and chat later.  Whilst waiting for Wah Gor, out of curiosity, the defendant picked up the basketball.  He did not know that drug had been concealed inside the basketball.  He in fact had nothing to do with any drug found inside.”

The Evidence

3.  The prosecution called two witnesses.  They were two detective constables (‘PW1’ and ‘PW2’) who had been assigned plainclothes observation duty at the Yue Man Square area in Kwun Tong.

4.  Insofar as it is relevant to the present application, the evidence of PW1 was as follows :[2]

“ At 4.32 pm, PW1 noticed a man - who we know is the defendant - who wore a black jacket and a white upper garment at the time, was walking up and down along the pavement outside Yue Man Square Park. The defendant was also looking around. According to PW1, his attention at the time was focused on the defendant’s behaviour. He did not even notice the presence of any basketball.

After two to three minutes later, the defendant walked up to a kerb near a rear lane. That is the middle of Photograph 5, I am sure you will remember that. According to PW1, at the time there was nobody in the vicinity. The defendant then squatted down and appeared to be searching something with both his hands from a ball-shaped object - we know that is the basketball. You also remember the gesture, the movement that PW1 demonstrated [a “digging or whatever motion”[3]]. After a few seconds, the defendant picked up the basketball and held it against his abdomen. The defendant also embraced the basketball and covered the basketball partly with his jacket.

The defendant then left and walked towards the direction of PW1. When the defendant was about 4 to 5 feet in front of PW1, PW1 revealed his warrant card and said he was a police officer. Having heard that, the defendant immediately turned around. PW1 then threw his arms around the defendant’s upper body. PW1 kept telling the defendant that he was a police officer and asked the defendant not to move. However, the defendant tried to escape and kept struggling. As a result, both of them fell onto the ground.

A minute later, PW2 came to assist. According to PW1, PW2 came to assist because when the defendant was standing next to the basketball, he alerted his colleagues, his partner, by calling him up. One or two minutes after PW2’s arrival, the two of them succeeded in subduing the defendant. PW1 then pointed out the basketball to PW2 who then took a quick look at the basketball. PW2 then informed PW1 that there were suspicious items inside. The defendant was then helped to stand up. In front of both the defendant and PW1, PW2 examined the basketball. PW2 took out all the items from the basketball. There were some yellow torn papers, four resealable Ziploc bags which contained suspected dangerous drug.

PW1 then declared arrest on the defendant.  Under caution, the defendant said: ‘I have nothing to say’.  HK$73 and a mobile phone were also found from the defendant.”

5.  PW2 did not see how the struggle between PW1 and the applicant started but, as previously indicated, he was involved in subduing the latter :[4]

“ At 4.35 ….. he was contacted by PW1. PW2 then walked to Yue Man Square Park. He actually walked slowly because he did not want to attract any attention. When he was walking towards the park, at a distance of about 30 metres, he saw PW1 having a struggle with the defendant. He also witnessed the basketball fallen from the defendant’s hand onto the ground.

PW2 went forward.  By the time he reached them, both PW1 and the defendant were already on the ground.  PW2 shouted, ‘I am a police officer, don’t move’.  The struggle did not stop.  PW2 then went forward and subdued the defendant.  It took about two minutes to subdue the defendant, according to PW2.”

6.  On closer examination of the basketball after the applicant had been handcuffed, PW2 noticed that :[5]

“ ….. there was a slit of 16 centimetres in length on the surface of the basketball. The basketball had been cut open. PW2 also stated that as a basketball player himself, he could say that the basketball was deflated. PW2 then pulled open the basketball. He found four packets of suspected dangerous drug inside. He also found some tissue papers and some yellow papers inside the basketball. He then informed his partner of his findings.”

7.  The applicant gave evidence but called no witnesses.  The following is his version of events :[6]

“ ….. on the material day, the defendant went to Kwun Tong, Yue Man Square Park to meet his friend Wah Gor. He arrived at the entrance of the park at about 4.30, 30 minutes late. When the defendant was on his way in the MTR, Wah Gor asked the defendant when he would arrive. The defendant was told to give Wah Gor a call when he arrived.

When the defendant reached the entrance, he could not see Wah Gor. He then walked up and down the pavement as he was waiting for his friend.

According to the defendant, once he reached the entrance of the park, he had already spotted the basketball. The basketball was placed near a signpost. He kept walking up and down the pavement for one to two minutes and noticed that the basketball was still there. He felt bored and that no one had picked up the basketball so, as a result, the defendant decided to pick up the basketball for fun.

When he was picking up the basketball, he could feel the basketball was deflated, he could feel the basketball being deflated, and when he turned the basketball around, the defendant also could see a slit mark on the basketball. Some pieces of paper also got stuck out.

According to the defendant, all of a sudden, somebody without declaring his identity, came from behind, jumped on and attacked the defendant. As a result, he fell onto the ground. The defendant reacted by putting up a struggle. As he was struggling, another man came over and rendered further assistance to the first one. The second person then said: ‘Police officer, don’t move’. After the second person shouting for three to four times, the defendant stopped struggling. The defendant was subdued and handcuffed at his back.

Thereafter, the other man, PW2, placed the basketball in front of him.  PW2 then searched the basketball.  He retrieved lots of papers and four packets of stuff from the basketball.  PW2 then put all these in front of him.  While he was still on the ground - the defendant was still on the ground, PW1 declared arrest on him.”

The Applicant’s Video Recorded Interview

8.  Despite exercising his right to silence at the scene, the applicant did give an account of what happened in the park in a subsequent video recorded interview, the content of which was largely consistent with what he later said in court.

9.  In particular, he explained that, besides being bored and wanting to have something to play with whilst waiting for his friend (counters 171 – 173)[7], the reason why he picked up the basketball was that he thought the pieces of paper protruding from the slit were banknotes (counters 227 – 229) and he wanted to carry the ball to a “concealed place” to “unwrap it to see what it was” (counters 245 – 247).

10.  For tactical reasons, no doubt, this interview was challenged, and was admitted into the evidence only after a two-day voir dire.

Ground of Appeal

11.  Mr Mughal who represents the applicant in these proceedings but not below advances two but, in effect, one substantial ground of appeal, ie in the circumstances of the case, the trial judge ought to have but failed to direct the jury on the question of ‘flight’.

Discussion

12.  As in numerous other drug trafficking cases, here there was no direct evidence on the applicant’s guilty knowledge and the prosecution case was based entirely on inference.  It was a situation which even the police realized for, during their 23-minute interview on video, PW1 and PW2 had repeatedly questioned the applicant as to why he had picked up the basketball, what he intended to do with it and why he had not immediately thrown it away after seeing it was deflated (counters 61, 77, 139, 168, 170, 172, 206, 208, 226 and 294 – 299).

13.  Likewise, the officers were interested to pin down what explanation the applicant had to offer for “resisting” them at the scene – on the premise that PW1 had already made known his police identity to him (counter 21).  Although it involved a much smaller number of questions than that which concerned the basketball (counters 23 and 49), this line of inquiry was obviously relevant, and was one which the applicant himself was anxious to meet by emphasizing that he was unaware of the officers’ true identity (counters 50, 165 and 167).

14.  When the matter came to trial, the prosecutor too had gone full distance in her closing address to the jury.  In an hour-long speech which transformed into 20 pages of transcripts[8], which is by no means brief in such a simple case, the consistent theme of counsel was again to cast incredulity on the applicant’s account of innocently picking up the ball and fleeing or struggling without knowing that he was dealing with the police.  The stress was of course on what inference could be drawn from those behaviors if the applicant’s innocent explanation was rejected.

15.  This is what counsel said after rehearsing the prosecution case with the jury (emphasis added) :[9]

“ So as I’ve said, the issue of knowledge is very important, obviously, in this case. And of course there’s no direct evidence of knowledge. The defendant doesn’t say at any stage, ‘Oh, yes, I knew what was there in the ball, I deliberately went to get the drugs,’ there’s no evidence of that kind before you. So of course you have to consider the case as a whole, look at all those facts and decide for yourself this question of knowledge. Did the defendant know what was inside the ball when he picked it up and walked away with it?

Members of the jury, you are not allowed to speculate about the facts of the case but you are allowed to draw inferences in a case, as long as the inference you draw is the only reasonable, irresistible inference to be drawn from a set of facts. I’m sure his Lordship will explain that to you a bit further.

But what I’m suggesting to you is that looking at all the facts of this case, particularly at how the defendant behaved at the scene, then the only irresistible inference you could draw from those facts is that the defendant did know the contents of that basketball when he picked it up and took it away -- started to take it away.  But of course, that’s the issue you have to decide.”

It was then followed by pages of her unpicking and exposing the alleged illogicality of different aspects of the applicant’s account.

16.  Insofar as the question of ‘flight’ or resisting the police is concerned, these were the prosecutor’s initial remarks (emphasis added) :[10]

“ PW1 said that because the defendant was walking to him in this rather strange manner, that’s when he approached, declared his police identity, and went forward to stop the defendant who then tried to flee. And this was why the officer had to grab him, to try and stop him.

Members of the jury, you might think that if someone knowingly is holding a ball full of dangerous drugs, they may well try to flee once they know that the person approaching them is a police officer.  I suggest again that makes -- that would be what your commonsense would tell you.”

17.  Later, in about the middle of her speech, the same point was repeated with counsel drawing support from the applicant’s video recorded interview which, in one important aspect, contradicted his evidence in court (emphasis added) :[11]

“ So if you do accept that the defendant did walk at least several steps away from the position where he found the ball, when he was carrying that ball, then I suggest it’s much more in agreement with what PW1 told you happened that day at the scene.

Because these steps, walking towards PW1, would have given that officer the opportunity to notice, observe the defendant’s strange behaviour, and given him the opportunity, as he told you, of announcing his police identity as he approached the defendant. Giving him a chance to identify himself, to move forward and stop him, but of course this is when the officer says to you, ‘The minute I announced my identity, the defendant turned away from me and tried to flee, tried to escape’.

PW1 accepts that he grabbed the defendant from behind, but he said, ‘The reason I had to do that was because he turned away to flee, so I grabbed him from behind to stop him’. Again, members of the jury, you may think that all is a very credible explanation of how this happened.

I suggest why the defendant, in court, is saying to you, well, ‘I was grabbed immediately when I was picking up the ball, before I had a chance to move away,’ is to suggest to you that he was never warned of the identity by the police; in other words, that the police officer never had a chance to say, ‘I’m a police officer’ before grabbing him.  And I suggest that is not in agreement or accordance with not only PW1’s evidence but also, importantly, the evidence of the defendant himself in that video-recorded interview.”

18.  Reference was also made to the evidence of PW2 which, if accepted, would establish that the applicant had continued to struggle upon learning PW2, at least, was a police officer (emphasis added) :[12]

“ So the defendant, of course, admits that when the second police officer, PW2, arrived on the scene, he did announce his police identity. But members of the jury, think about this. That officer said to you, that he went in to find the two struggling, in other words PW1 and the defendant, struggling on the ground and he went in to assist PW1 to subdue the defendant. But he said it took two minutes even then to stop the defendant struggling.

Now, if the defendant admits he knew that PW2 is a police officer, why did he spend another two minutes still struggling and trying to escape unless he really intended to escape?  Not because he didn’t know who the person was who was struggling with him, but because he wanted to escape to get away with the drugs, I suggest. And this officer was never challenged about this two minutes when he was still struggling to subdue the defendant.”

19.  Approaching the end of her speech, the prosecutor was at it once more.  She said (emphasis added) :[13]

“ Members of the jury, you’ve got to look at the picture as a whole here. Why was the defendant there? Why was he walking about? Why didn’t he go to the restaurant for yum cha to find his friend? I suggest the only reason was he went there to collect the drugs. That’s why he tried to flee from the police; that’s why he tried to conceal the ball; and that’s why he dug around in the ball before he picked it up.

……..

Members of the jury, consider this. The defendant tells you he struggled because he did not know that PW1 was a police officer, although he admits he knew PW2 was and went on struggling. But he said, ‘I was grabbed from behind, I didn’t know the man was a police officer’.

Members of the jury, even if, for a minute, you think, well, he didn’t know, or he may not have known - because it has to be proved beyond reasonable doubt - then do you not think that the actions of an innocent man would be to sort of turn around and say, ‘Who are you?  What are you doing?’ not just immediately try and run without doing anything to check what was happening?  There’s certainly no evidence that the defendant behaved like that.  So I suggest to you his version of events is just not credible.”

20.  Things as they were, Mr Wong for the respondent has fairly conceded that a ‘flight direction’ ought to have been given.  There can be no dispute that the prosecution had relied on the evidence of ‘flight’ to support their case (HKSAR v So Tsz Kon [2015] 3 HKLRD 169; HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155).  But no such direction was forthcoming.

21.  The judge did direct on ‘inference’[14], and had recapitulated the defence case on the question of the applicant resisting :[15]

“ ….. Mr Wong told you that PW1 and PW2 were not credible and honest witnesses. He pointed out to you various matters in his view were illogical and against commonsense …...

….. Mr Wong pointed out to you that had PW1 revealed his identity to the defendant, he would have said so in the video-recorded interview, in particular Entry 50 …..,.”

but he had not instructed the jury on what to make of PW1 and PW2’s evidence if they were accepted to be truthful witnesses. The judge had in fact only repeated to them in no uncertain terms what the officers’ version of events was in relation to the struggle.[16]

22.  That being the case, the only remaining question is whether that omission had given rise to an unsalvageable impact on the safety of the applicant’s conviction.

23.  Drawing support from the analogous cases on ‘lies’ (Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113; HKSAR v Chan Boon Ning CACC 571/2001, unreported, 7 August 2003), and citing the approach of this Court in So Tsz Kon (ibid), Mr Mughal’s suggested answer to that question is ‘yes’.  Mr Wong, on the other hand, prays in aid the case of HKSAR v Mutengu Johnson Mikali CACC 215/2008, unreported, 4 May 2009, and urges us to apply the ‘proviso’.

24.  In our judgment, Mutengu is, as Mr Mughal submits, immediately distinguishable.  In that case, the defendant was found standing idly inside a building with a pack of dangerous drugs (940.95 grammes of heroin) tucked under his underpants.  In that case, however, the judge had directed the jury that “[t]he mere fact that he runs does not necessarily mean that he is guilty”.  It was in those circumstances that the Court concluded that “there was no possibility of the jury convicting on the evidence of flight alone”, and that although a less than full ‘flight direction’ was proffered, the ‘proviso’ should be applied.

25.  Albeit strong, the evidence of how the applicant got hold of and hung on to the basketball is nowhere as cogent as the evidence that can give rise to the inference of knowledge in Mutengu.  That, plus the absence of anything bearing any resemblance of a relevant warning, we feel we are unable to say that, had the jury been given a ‘flight direction’, they would certainly have convicted the applicant.  As things were, the conviction was by a majority of 6 to 1.  We do not adjudge this to be an appropriate case for applying the ‘proviso’.

Disposal

26.  For the above reasons, we granted the applicant leave to appeal against his conviction and treating the hearing of the application as the appeal proper, allowed his appeal.  We ordered that his conviction be quashed and given Mr Mughal’s fair concession that he had no valid reason for so resisting, ordered that the applicant be retried on the same charge.