HKSAR v. YIP KA MAN

CACC 347/2018

[2020] HKCA 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 347 OF 2018

(ON APPEAL FROM HCCC NO 126 OF 2018)

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J U D G M E N T

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Introduction

1.  The applicant and Zango Michel Meneses, whom I shall refer to by their trial designations as D1 and D2 respectively, were jointly charged with one count of trafficking in a dangerous drug, namely 999 grammes of a solid containing 816 grammes of cocaine.  On 7 November 2018, following a trial before Barnes J (the judge) and a jury, D1 was convicted of the offence, whilst D2 was acquitted.  D1 was sentenced to 22 years’ imprisonment.

2.  On 26 November 2018, D1 applied for leave to appeal against his conviction only.

The prosecution case

3.  The prosecution case was that at about 1:30 am on 5 August 2017, two police officers, PC 12237 (PW1) and Sergeant 58432 (PW2), while carrying out an anti-crime patrol in the Tsim Sha Tsui district, observed a vehicle with the registration number, UN 5922, turning into Middle Road from Salisbury Road, then stopping outside 10 Middle Road.  It was not in dispute that D1 was the driver of the vehicle and that D2 approached the vehicle shortly after it had come to a stop.  D2 then got into the front passenger seat of the vehicle.  The police officers observed, through the vehicle’s windows, D2 pass a black object onto the thigh of D1.  PW1 also observed that D1 had a clutch bag on his lap which he unzipped.  The police officers opened the doors of the vehicle and identified themselves, at which point D1 immediately threw the black object from his thigh to the floor of the passenger seat.  The black object landed near the feet of D2.  The black object was seized by PW1, which was found to contain the drugs as particularised in the charge.  Other police officers then arrived to give support.[1]

4.  The prosecution case depended entirely upon the evidence of PW1 and PW2 as to what they claimed to have seen and done.  The judge in her summing-up to the jury stressed the importance of the evidence of PW1 and PW2 in establishing the guilt of the two accused.  The defence case sought to discredit the evidence of the two police officers by relying on CCTV footage, which they submitted contradicted the evidence of the two police officers about the black object and whether it was in the car or in possession of D2.

5.  There were film footages from three CCTV cameras which captured the events surrounding the arrest of the two accused.  The judge stressed to the jury the importance of this evidence, particularly as a means to assess the credibility and reliability of the evidence of the two police officers.  The judge described in careful detail what was depicted on the CCTV footage by reference to the evidence of the two police officers.[2]  She said that PW1 was seen going to the left front corner of the vehicle and taking something out from his rucksack.  It had been put to PW1 that what he took out was something white and that it was a bag of drugs.  He denied the allegation and explained it was an empty exhibit bag.[3] He was also seen putting on gloves, not for the purpose of conducting a search, but rather to protect the scene by not leaving any fingerprints.  He was also seen getting down behind the front passenger door and for about 1½ minutes he cannot be seen.[4]  He then stood up with a bag in his hand which he held up high.  He carried the bag and walked over to the driver’s side, which he said was the bag of drugs.  He explained that the bag of drugs was in a tamper proof bag that he had taken out from his rucksack.[5] 

6.  Throughout this description of the CCTV footage, the judge invited the jury to consider the accuracy and reliability of PW1’s evidence by way of comparison.

Submission of no case to answer

7.  At the conclusion of the prosecution case, the two accused made a submission of no case to answer.  The judge ruled that there was a case to answer, having reasoned that it was for the jury to decide whether they accept the explanations given by the police officers as to the alleged inconsistencies shown by the CCTV footage.  The judge also noted that in addition to what the two police officers had seen there was also circumstantial evidence in the case.  She noted that the vehicle suddenly stopped and then someone else got into the vehicle.

8.  The judge ruled:

“At this stage, I cannot say that the jury would definitely find that the drugs were not found from the car and that was brought in by the police. I have to look at it from the prosecution case. The prosecution case is that the drugs were found in the car, so that is a piece of circumstantial evidence that would have to be taken into account.

Of course, I would direct the jury carefully, at the end of the day, when they consider this evidence, what inference to be drawn or how they should draw the inference. But I don’t think that I can really say that the evidence is so tenuous in the sense that it is so inconsistent, so against common sense, so illogical, the case should not go to the jury.”[6]

The defence case

9.  The two accused elected not to give evidence, nor call any witnesses in their defence at trial. The defence case was that the drugs were not found in the vehicle and it was PW1 who retrieved a bag of drugs from his rucksack.   D2 also relied upon answers given in his video-recorded interview.  It was his case that he had nothing to do with the drugs and was not carrying any drugs when he approached the vehicle.[7]    He got into the vehicle because he was asked by someone to collect money[8].

The grounds of appeal

10.  Relying on the evidential issues at trial, D1 challenges his conviction by advancing three grounds of appeal.  Ground 1 complains that there is “a doubt or lurking doubt” about D1’s conviction.  It is argued that the state of the evidence was so tenuous it could not have supported the safe conviction of D1 beyond reasonable doubt.  Ground 2 complains that, on the state of the prosecution evidence, the judge should have ruled there was “no case to answer” and ought to have stopped the trial. Ground 3 complains that the conviction of D1 was inconsistent with the acquittal of D2.

Ground 1: Lurking doubt

11.  Mr Giles Surman, for the applicant, contends that the state of evidence was objectively so tenuous that it could not have supported the safe conviction of the applicant to the requisite standard.

12.  The difficulty with his argument is that the issues he relies on in questioning the credibility and reliability of the police evidence was fully and fairly put before the jury to consider in determining the case against the applicant. 

13.  It has to be said that the judge very thoroughly highlighted the issues in relation to the evidence of PW1 and PW2, stressing to the jury the matters that had been raised about their evidence by the defence and inviting them to carefully consider them.  In fact, no issue is taken, nor criticism is made, of the judge’s summing-up to the jury.

14.  The judge very thoroughly summed-up the state of the evidence and the defence case to the jury.  This obviously has a direct bearing on whether the conviction was unsafe or unsatisfactory on the basis that there was a lurking doubt about the reliability of the conviction.  The test to be applied is whether there is a substantial remaining doubt, as distinct from an insubstantial doubt: Tang Wai Tong & Anor v R [1978] HKLR 479, at 486 and 487; and HKSAR v Chang Che Wei [2012] 2 HKLRD 1151, at [44].

15.  Mr Surman poses a number of rhetorical questions about the evidence of PW1 and PW2 in relation to what they had said happened. He questions their evidence by repeating the issues raised before the jury, which mainly concerned the alleged discrepancies between the police evidence and the CCTV footage.  The challenge of the police evidence was a major feature of the defence case which was highlighted by the judge in her summing up to the jury and which they were invited carefully consider.

16.  I do not find this ground of appeal reasonably arguable.

Ground 2: No case to answer

17.  It is contended by Mr Surman that the judge should have found no case to answer because of the tenuous nature of the evidence.

18.  The judge carefully considered the issue of the state of the prosecution evidence when she gave her ruling on a case to answer and was clearly guided by the test to be applied as stated in R v Galbraith [1981] 1 WLR 1039 and AG v Li Fook Shiu, Ronald [1990] 1 HKC 1.

19.  No fault can be found with the way the judge considered the no case submissions, nor with her ruling that there was a case to answer.  She clearly applied the correct test and decided that the evidential issues raised by the defence were matters for the jury to consider and decide upon. 

20.  The criticism of the police evidence mentioned under the first ground is also relied upon in this second ground.  There were evidential issues for the jury to consider in relation to the police evidence. They were certainly not of a kind that could be characterised as tenuous so as to warrant the withdrawal of the case from the jury.   The judge noted that it was “for the jury to decide whether they accept the explanations given by the police officers as to these so-called inconsistencies shown by the CCTV.”

21.  I do not find this ground reasonably arguable.

Ground 3: Inconsistent verdicts

22.  It is argued that D1’s conviction is unsafe because it is inconsistent with D2’s acquittal for the same offence.  Clearly, much will depend on the evidence that was adduced against each defendant.  In D2’s case, he had before the jury the answers he gave in his video-recorded interview[9] and the CCTV footage of him at a 7-Eleven store, just prior to boarding D1’s vehicle.[10] 

23.  The relevant principles on inconsistent verdicts is set out in HKSAR v Yu Kwok On [2011] 2 HKLRD 886, at [40] – [44]; and HKSAR v C T, unrep., FACC 25/2018, 25 July 2019, at [29] – [35] (inconsistent verdicts in sexual cases).  The question is whether the verdicts are logically inconsistent, and if so, whether such inconsistency demands the interference by an appellate court because there is no sensible explanation for it.

24.  Mr Surman notes that the acquittal of D2 indicates the jury were not sure of the evidence as against him.  Moreover, he argues that the jury convicted D1 even though the evidence with respect to both accused was “for all practical purposes identical”.  He submits that there were the following independent issues in the case:

(1)     Was D2 in possession of “a black object” when he approached the vehicle?

(2)     Was there “a black object” in the vehicle?

(3)     Was there a passing of “a black object” as between or from D2 to D1?

25.  He argues that the jury could have found as a fact that there was no black object in D2’s possession and hence acquit him. He submits that this would make the conviction of D1 inconsistent and perverse because it would mean that there was no black object (and no drugs).

26.  In the alternative, he argues that the jury may have found D2 did not have a black object when he approached the vehicle and there was no passing of it, hence the acquittal.  He submits that this conclusion could only have been reached if the jury was unsure of the evidence of PW1 and PW2.  He contends that the jury’s verdict was inconsistent and perverse. 

27.  This is all fairly selective and ignores the differences in the cases and the evidence against D1 and D2. 

28.  In the case of D2, he had his video-recorded interview before the jury in which he stated that he went to D1’s vehicle to collect money from him.  There was also CCTV footage of D2 inside and outside the 7-Eleven store, as well as when he approaches D1’s vehicle and gets into the front passenger seat.  It was an issue at trial that D2 was not carrying anything at the time.  This is an important difference in the case between D1 and D2. 

29.  The closing address by counsel for D2 is not included in the appeal bundle.  However from the closing address by prosecuting counsel and the no case submission by counsel for D2, it is clearly apparent that D2’s case was different from D1.  Counsel for D2 highlighted that there was no evidence that D2 was carrying anything at the time he walked towards D1’s vehicle.  He relied on the CCTV footage to support D2’s case.[11] 

30.  There was clearly an issue in relation to the prosecution case against D2, whether or not he was carrying anything when he got into D1’s vehicle.

31.  Prosecuting counsel in his closing address to the jury, when addressing the case against D2, noted that PW1 and PW2 had not paid attention to D2 until he got into the vehicle.  He also noted that their evidence was that they had seen him for only a very short period of time, as he was just a person walking down the street, although they did say that they did not see him carrying anything.  There was therefore an issue before the jury as to whether or not D2 was carrying anything before he got into D1’s vehicle. The prosecution invited the jury that D2 was carrying something but it was concealed.  The prosecution also invited the jury, that if they accepted the evidence of PW1 and PW2 that they saw an object pass from D2 to D1, they could infer that D2 must have had the object on him when he got into the vehicle.[12] 

32.  It follows that there was a rational and logical basis for the different verdicts.

33.  I do not find this ground reasonably arguable.

Conclusion

34.  I am not prepared to grant leave to appeal on any of the grounds put forward.  The application is accordingly refused. 

35.  I should advise the applicant that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application. 

[1] Appeal Bundle, 11J-13F and 24I – 28I.

[2] Appeal Bundle, 28J – 43E.

[3] Appeal Bundle, 32S – 33A.

[4] Appeal Bundle, 33A – D.

[5] Appeal Bundle, 33E – K.

[6] Appeal Bundle, 237S-238I.

[7] Appeal Bundle, 227O-229D.

[8] Appeal Bundle, 13F – K.

[9] Appeal Bundle, 13F – K.

[10] Appeal Bundle, 29P – 30K.

[11] Grand seikoAppeal Bundle, 227J-229D.

[12] 247P-249I, and 249J-251D (D2’s record of interview).