HKSAR v. YU WING FUNG

CACC 156/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 156 OF 2015

(ON APPEAL FROM HCCC NO 279 OF 2014)

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J U D G M E N T

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Hon Macrae JA (giving the Judgment of the Court):

1.  The applicant, who was D1 at trial, faced a joint count together with Ms Mok Po Yee (“D2”) of unlawfully trafficking in a dangerous drug (Count 1), namely 3.82 kilogrammes of a crystalline solid containing 3.81 kilogrammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The total quantity of dangerous drugs, the subject matter of Count 1, was divided equally into two separate amounts, each contained in the respective suitcases of the applicant and D2.

2.  Accordingly, each defendant was also separately indicted with an alternative count of trafficking in respect of the “Ice” found in his or her respective suitcase: namely, 1.91 kilogrammes of “Ice” found in the applicant’s suitcase (Count 2); and 1.90 kilogrammes of “Ice” found in D2’s suitcase (Count 3).

3.  D2, having pleaded not guilty to Count 1 but guilty to Count 3, which pleas were accepted by the prosecution, gave evidence against the applicant as a prosecution witness.  On 28 April 2015, following a trial before Deputy Judge McMahon and a jury, the applicant was unanimously acquitted on Count 1, but unanimously convicted on Count 2.  On 30 April 2015, the judge sentenced the applicant to 25 years’ imprisonment; and D2 to 12½ years’ imprisonment.

4.  The applicant now seeks leave to appeal against his conviction only, for which he is represented by Mr Christopher Grounds and Mr Herman Poon.  D2 originally sought in person to appeal against her sentence but subsequently abandoned her application, which was formally dismissed on 25 October 2017.

The prosecution case

5.  At about 4:40 pm on 22 December 2013, the applicant and D2 were in the vicinity of the Qantas airline check‑in counters at the Departure Hall of Hong Kong International Airport, intending to board an aeroplane to Brisbane in Australia.  Each was pulling a suitcase.  They were intercepted by Customs officers and taken to have their suitcases searched.  Inside a false bottom of each suitcase were found 10 packets of “Ice” of almost identical weight.  The applicant and D2 were both arrested.

6.  The prosecution relied heavily on the accomplice evidence of D2 against the applicant.  She testified that she had first met the applicant in September 2013.  He had subsequently recruited her to smuggle diamonds to Australia, although he had later told her that “diamonds” was a code word for dangerous drugs.  Her reward was HK$30,000, which the applicant had paid over to her in a taxi on the way to the airport.  They were to pose as a couple who were flying to Australia to get married.  D2 denied knowing that there were dangerous drugs in the applicant’s suitcase.

7.  The applicant having pleaded not guilty to the indictment, it was the prosecution case that he was in control of the operation and trafficking in all of the drugs in both suitcases.

8.  In his closing speech to the jury, prosecuting counsel conceded, on the basis of evidence suggesting otherwise, that the jury might think that D2 was not telling the complete truth when she maintained that it was the applicant who had proposed carrying “Ice” to Australia; in fact, it appeared from various Whatsapp messages shown to her in cross-examination that she was the one looking for someone to help her carry something to Australia[1].  Accordingly, prosecuting counsel contended that, even if D2’s evidence was disbelieved, other evidence (such as the presence of a substantial quantity of dangerous drugs in his suitcase, the value of those dangerous drugs[2] and certain Whatsapp messages passing between the applicant and D2[3]) could still support the conviction of the applicant.  He posited these questions in his address:[4]

“Was [D2] telling you the complete truth? Was she more deeply involved? Is this the real issue? The real issue is to decide the accused’s involvement. Even if you totally reject what she says, the prosecution says you can still look at the other evidence and find him guilty of Count 1 and certainly if you are not satisfied about that, Count 2, the alternative.”

The defence case

9.  The applicant gave evidence and called a witness in his defence.  The applicant maintained that he had been recruited by D2 to smuggle diamonds to Australia, in order to avoid excise duty in Australia.  He thought that concealed in both suitcases were diamonds, not dangerous drugs.  The essence of the defence was that the applicant was an innocent dupe of D2, who was the real organiser of the trip.  It was established that she had been on a similar trip to Australia in May 2013 with her then boyfriend.

10.  A defence witness, Mr Tse Chun Kit, testified that he had come to know the applicants when attending the same “cocktail (making) class” with them in 2013.  He said that he himself had been approached by D2 in order to smuggle diamonds to Australia.

Discussions between judge and counsel prior to the summing-up

11.  Before the closing speeches of counsel and the summing‑up, the judge had discussed with counsel the warning he proposed to give the jury about the evidence of D2.  In the light of the grounds of appeal argued before us, it is necessary to set out those exchanges in full[5]:

“DEFENCE COUNSEL: The other matter is accomplice warning. I have here for your consideration an authority that basically says despite the abrogation under section 60 of the Criminal Procedure Ordinance, it’s very much in your discretion.

COURT: Yes, and what I’ve drafted is something along these lines - I’ve drafted something along these lines, that the witness [D2] has to be treated very cautiously by them in terms of her credibility, that she has given evidence on the basis that she is yet -- in circumstances where she is yet to be sentenced and that she, for her plea of guilty and giving evidence, is likely to get a discount in sentence, and the ‑‑ I can’t remember the exact words. My clerk is bringing in the direction now.

DEFENCE COUNSEL: Yes. So again, a warning to be careful before accepting her evidence.

COURT: Yes. I think there’s a lot of common sense in that in any event.” (Emphasis supplied)

The judge’s summing‑up

12.  When the judge in due course came to sum up, he emphasised at the outset of his remarks that the defence took serious issue with the truthfulness and reliability of D2’s evidence.  He said[6]:

“The defendant, in his case, says that [D2]’s evidence is a lie, she is simply trying to get a reduced sentence and has done a deal with the prosecution to plead guilty to trafficking in the drugs found in her suitcase, and that she gave evidence against the defendant in order to get that reduced sentence. The defendant’s case is that you should therefore ignore her evidence as unreliable.”

13.  He then went on to give the jury an uncontroversial direction that[7]:

“…you do not have to accept all of a witness’s evidence or reject all of a witness’s evidence. You are entitled to accept some parts of a witness’s evidence and reject other parts if you think that is appropriate.”[8]

14.  The judge began his summary of the evidence of the prosecution witnesses, by heralding a direction he would later give concerning D2.  He said[9]:

“… the defence case is that [D2] is a very dubious witness. She is in a special category of witness, and I will give you a direction in that regard when I remind you of her evidence.”

15.  The judge returned to what he meant when he came to deal specifically with the evidence of D2 at the end of his review of the other prosecution witnesses.  He told them:[10]

“[D2] was a special witness. As she told you, she has pleaded guilty to trafficking in the drugs hidden in the brown suitcase, her suitcase, which she was seen with when she was intercepted by the Customs officers at the Qantas check-in aisle. Firstly, the fact that she has been convicted of that offence does not in any way assist the prosecution in providing its case against the defendant in respect of either Count 1 or the alternative Count 2.

In other words, her conviction for trafficking in the drugs hidden in the brown suitcase should not in any way be taken into account by you in considering whether the present defendant is guilty or not guilty of Count 1 or Count 2.

A defendant’s case is not determined on the basis that another defendant or one who was previously a defendant has pleaded guilty or not guilty. You determine the defendant’s case on the basis of the evidence against him. You do not make any assumptions about his case because another person has pleaded guilty to similar charges or a similar charge that he faces, I should say. So you simply ignore the fact that [D2] has pleaded guilty to trafficking in the drugs in the brown suitcase in considering your verdict or verdicts relating to the present defendant.

But there is a second important matter concerning [D2] that you must also take into account in assessing her credibility on this occasion. She is yet to be sentenced for her offence of trafficking. It may be that because of her cooperation with the prosecution authorities and her giving of evidence in this case, that she receives a considerable reduction in her sentence.

Ask yourselves, therefore, could she have been tempted to falsely incriminate the defendant still on trial before you so as to encourage the prosecution to use her as a witness to have the opportunity to receive a considerably smaller sentence than she otherwise might have received?  Mr Percy suggests this may be so and suggests that [D2] is a tainted witness and that you should not place any weight on her evidence.”

16.  It should be observed that the judge did not tell the jury in terms that they should treat D2’s evidence “very cautiously”. However, when he came to summarise her evidence, he alluded to four curious coincidences[11] in her account, and concluded[12]:

“[T]here is a whole series of coincidences in her evidence you might think. It is up to you as to whether that undermines her credibility as a witness, and if it does, to what extent it undermines her credibility as a witness.”

17.  The judge further highlighted certain aspects of her account, which the jury might have thought could not be true[13].  He explained the defence purpose in cross-examining D2 on these matters[14]:

“[Defence counsel] … in cross-examination was simply demonstrating that [D2] had also lied to the Customs officers. That is a matter you may wish, as I say, to take into account in assessing the reliability of her evidence as a witness.

It was put to her finally, towards the end of cross-examination, that all the arrangements had been made by her rather than the defendant, because she had been to Australia before and you may well think that she had in fact taken items to Australia before.  So she was familiar with the procedure.  In those circumstances what weight do you place upon her evidence that the defendant had made all these arrangements.  The defendant had never travelled anywhere before because you will remember that this was the first time he had applied for a passport and he, therefore, was not familiar, you may think, with the procedures.”

18.  It may also be noted, for the sake of completeness, that twice during his summing‑up, the judge invited counsel for both sides to comment on his directions if they wished.  The first invitation was made in the middle of his summing‑up, in the absence of the jury[15]; the second occasion, in the presence of the jury, immediately before he asked them to retire to consider their verdicts[16]. No amendments or corrections to his summing-up were suggested.

Applicant’s submissions on appeal against conviction

19.  Mr Grounds has essentially advanced one ground of appeal, which concerns the directions the judge gave (or did not give) to the jury in respect of the way they should approach the evidence of the accomplice witness, D2.  Given that she was an obviously tainted witness, it was submitted that the directions fell short of bringing home to the jury the dangers of relying upon her evidence.

20.  Furthermore, notwithstanding that the judge indicated to counsel, as we have seen above[17], that he would direct the jury to treat her evidence “very cautiously”, he never did so.  In fact, he never mentioned the words “care” or “caution”, or any of their variations or derivative forms, in his summing‑up. Instead, he referred to D2 as a “special witness” without ever explaining what that meant in terms of the jury’s approach to her credibility.  Whilst describing D2 as a “dubious” witness, the judge never gave an authoritative judicial direction warning the jury to be careful or cautious about her evidence, but instead couched such criticisms or warnings as he did make of the witness by attributing them to defence counsel.  Indeed, instead of telling the jury in direct terms that D2 was a tainted witness, he simply said that “the defence case is that [D2] is a very dubious witness”[18].

21.  Mr Grounds accepted that, since the abrogation of the rule of corroboration in accomplice cases, it is a matter entirely within the discretion of the trial judge as to whether, and if so in what terms, he cautions the jury about the potential dangers of accomplice evidence.  As the Court of Final Appeal put the position in Hong Kong in Wong Chi King v HKSAR[19], at 489E-J:

“15. Whether to give the jury the warning to exercise caution when considering the evidence of a witness is entirely a matter of discretion for the trial judge. Where there is an evidential basis to suggest that the witness’s evidence may not be reliable for whatever reason, the trial judge should consider giving such a warning to the jury. And if he decides to do so, the terms of his direction will depend on the circumstances of each case. As Lord Taylor put it in Makanjuola[20] at p 473:

“It is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.”

16. A trial judge has charge of the trial. He has heard the evidence of the witness and is well aware of the issues involved, the relevance and importance of the evidence to those issues and other relevant circumstances. He is thus in a position to assess whether there is any need to give a caution warning and if so, in what terms. An appellate court will usually be slow to interfere with the exercise of his discretion unless the failure to give a caution warning or to use the appropriate terms when giving the warning, has, adopting the words of Lord Sumner in Ibrahim v R [1914] AC 599, p 615, “deprived the accused of the substance of a fair trial”.”

22.  Mr Grounds argued that it is clear from the judge’s summing‑up that he himself recognised that there were problems with D2’s testimony.  Having referred to “a whole series of coincidences”[21] in her evidence, the judge went on immediately to remind them of certain answers in which she would appear to have lied[22]. Indeed, when sentencing D2 in respect of Count 3, the judge noted that matters had been raised in cross-examination “which considerably challenged her veracity generally”[23]; nevertheless, he concluded that “it would only be in the clearest of cases where a witness such as the 2^nd defendant plainly and deliberately lied on important issues in a case that the witness would lose the whole or any part of the discount normally allowed such witnesses.  Her evidence did not reach that point”[24].

23.  It is argued that, since the judge had evidently, and rightly, entertained misgivings about the evidence of D2, he had clearly resolved that in his discretion he would direct the jury to treat her evidence “very cautiously”: however, he never did.  Yet, this was a case where at the very least the judge should have given such a direction.

24.  Mr Grounds placed considerable reliance on the judgment of the Privy Council in Pringle v The Queen[25].  There, the particular problem under consideration was a cell confession.  The Board observed, at para 25, that:

“The problem as to how to deal with evidence of a cell confession is not new. There has long been an obligation on judges to warn a jury about the special need for caution in cases which are analogous to those of accomplices. These include cases where the witness’s evidence may have been tainted by an improper motive …”

Having considered the judge’s directions, the Privy Council held, at para’s 33-34:

“It is true that the judge drew the jury’s attention to some matters that they might like to consider when they were assessing the veracity of Simmonds’s evidence. But their Lordships consider that there was a significant omission from this part of the judge’s summing up. He ought to have drawn attention also to the factors which might indicate that the witness had an improper motive which tainted his evidence. These were that he was an untried prisoner, that it is not unknown for persons in his position to wish to ingratiate themselves with the police and that to give them information that the appellant had confessed to the crime for which he was being held by them in custody was a convenient and obvious way of doing so. He ought then to have given an express direction to the jury that they should be cautious before they accepted this witness’s evidence.

The Crown’s case against the appellant was based mainly on Simmonds’s evidence about the appellant’s conversation with Montgomery when they were all together as prisoners in the police cell. It was crucial, if the appellant was to receive a fair trial, that the jury should be told that they should be cautious before they accepted this evidence in view of the possibility that it was tainted. As this was not done, their Lordships have concluded that on this ground also the appellant’s conviction must be held to be unsafe.” (Emphasis added)

Mr Grounds submits that this was also a case for an “express direction”, as the judge had plainly indicated in his discussions with counsel before the summing‑up.

25.  He pointed out, which is common ground in this appeal, that D2 had not in fact been cross-examined by defence counsel about her hope of securing a sizeable discount for successfully giving evidence against the applicant, over and above that she could expect from merely pleading guilty.  Nor had prosecuting counsel canvassed the matter with her in examination-in-chief.  Although the matter had been alluded to by both prosecuting counsel and defence counsel in their closing speeches, and also referred to by the judge in his summing‑up, it had emerged late in the case and would not have been a matter at the forefront of the jury’s mind when listening to her evidence.

26.  Finally, he contended that the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221 cannot save the applicant’s conviction.  It could not be said that had the jury been properly directed as to how to approach the evidence of D2, they must inevitably have convicted.

Respondent’s submissions on appeal against conviction

27.  Mr Ira Lui, on behalf of the respondent, submitted that since an “unfettered” discretion[26] is reposed in a judge conducting a trial to give appropriate directions in respect of accomplice evidence, there can be no “hard and fast” rule as to when, and in what form, a warning should be given.  In the instant case, he pointed out that the potential unreliability of D2’s evidence was fully addressed in the summing‑up, in which the judge, having described her as a “special witness”, set out all the significant discrepancies, contradictions and shortcomings of her evidence.  No complaint had been made by the applicant about the completeness and even-handedness of that summary.  Mr Lui went on to add these further points:

(a) D2 was subjected to an extensive cross-examination over two days;

(b) The status of D2 as an accomplice witness, and the dangers of relying on her evidence, were fairly acknowledged and summarised in prosecuting counsel’s closing speech;

(c) The unsatisfactory features of D2’s evidence and her motive to lie were fully canvassed in defence counsel’s closing speech; and

(d) The unanimous acquittal of Count 1 must have meant that the jury were not prepared to accept D2’s evidence in its entirety.

28.  Mr Lui submitted that this was not a case where the dangers of reliance upon D2’s evidence would have been lost on, or obscured from, the jury until the summing‑up.  He pointed to the closing speech of defence counsel, who had acknowledged that the prosecution had opened[27]:

“…on the basis that [D2] was an important witness. They said she is the most important. She was involved in trafficking in dangerous drugs at the airport. You may remember [prosecuting counsel] said, also in his opening, pay particular attention to her. She may have special motives because of what she has done”

Accordingly, the jury would have known at the outset that D2 was a suspect witness, whose evidence they were to scrutinise with particular care.

29.  As for why she was a suspect witness, the judge explained in clear terms[28]:

“But there is a second important matter concerning [D2] that you must also take into account in assessing her credibility on this occasion. She is yet to be sentenced for her offence of trafficking. It may be that because of her cooperation with the prosecution authorities and her giving of evidence in this case, that she receives a considerable reduction in her sentence.

Ask yourselves, therefore, could she have been tempted to falsely incriminate the defendant still on trial before you so as to encourage the prosecution to use her as a witness to have the opportunity to receive a considerably smaller sentence than she otherwise might have received?  Mr. Percy suggests this may be so and suggests that [D2] is a tainted witness and that you should not place any weight on her evidence.”

Mr Lui argued that whether the judge actually used the word “care” or “caution” in warning the jury how they should approach D2’s evidence was otiose in the circumstances because the judge clearly invited them to ask themselves whether she might be giving false evidence against the applicant in order to secure a lighter sentence for herself; which was the very purpose of giving the warning in the first place.

30.  He argued that the risk that D2 may have given false evidence against the applicant in return for a lighter sentence would have been “blindingly obvious to the jury”[29], particularly in the light of the judge’s summing‑up.  As for the defence reliance on the case of Pringle, Mr Lui submitted that it was important that the case should be seen in its specific context, which was that of an untried prisoner on remand attempting to ingratiate himself with the police by purporting to hear a cell confession from a fellow prisoner to a crime for which that fellow prisoner was being held in custody.  That was a particular danger that had to be brought home to the jury, and one which would not necessarily be obvious to them.

Consideration

31.  As this Court and the Court of Final Appeal have consistently declared, it is the judge who must ultimately decide, having heard the evidence and the issues on which it bears, what, if anything, should be said to a jury about an accomplice witness’s evidence.  He is the one who, in the terms used in Wong Chi King at para 16, is:

“… in a position to assess whether there is any need to give a caution warning and if so, in what terms. An appellate court will usually be slow to interfere with the exercise of his discretion unless the failure to give a caution warning or to use the appropriate terms when giving the warning, has … “deprived the accused of the substance of a fair trial”.” (Emphasis added)

32.  There is no magic in the use of the words “care” and “caution” when directing a jury how to approach the evidence of an accomplice witness.  Whilst either word warns a jury about a particular witness’s evidence, neither word explains why they should be “careful” or “cautious”.  However, in most cases, it will be obvious from the cross-examination and speeches of counsel why the jury should exercise “care” or “caution” in respect of an accomplice witness.  In Wong Chi King, it had been submitted by the appellant that it was necessary, when giving a warning to a jury about a particular witness, to explain the reason for it.  The Court said of the argument, at para’s 18-19:

“18. As a general statement, this accords with common sense. The purpose of a summing up is to help the jury and to ensure that the accused has a fair trial. When the jury are asked to exercise caution in approaching the evidence of a witness, they would naturally want to know why they have to do so unless the reason is obvious to them. As Gibbs CJ in Bromley[30] said at p 319:

“The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.”

19. However, where the reason for exercising care is quite obvious “for all to see”[31], failure to explain to the jury why they should do so cannot be regarded as a material matter.”

33.  In other cases, where the reason for warning the jury about a particular witness may not be clear, it will be necessary to explain why they should be “careful” or “cautious” about his or her evidence. In the present case, for example, D2 was not cross-examined by defence counsel about her expectation of securing a reduced sentence for herself in return for successfully giving evidence against the applicant.  Absent any evidence about the matter, the jury would not necessarily be taken to know of this practice or policy of the courts in respect of accomplice witnesses.  Accordingly, in such circumstances, it would have been necessary for the judge to inform the jury in general terms that, in accordance with sentencing practice and policy, D2 could normally expect to receive a further discount, in addition to that to which she was entitled for pleading guilty, for successfully giving evidence against the applicant: see HKSAR v Ngie Hon Miu[32].

34.  It seems to us that Pringle is consistent with this approach.  It was the fact that the jury might not have appreciated that an untried prisoner might obtain an advantage from the authorities by claiming to have overheard a cell confession by another prisoner to a crime for which that prisoner was on remand that the Privy Council said it was incumbent on the judge to give an “express direction” drawing attention “to the factors which might indicate that the witness had an improper motive which tainted his evidence”[33].

35.  We do not accept the argument that Pringle changes the well‑established approach to accomplice evidence first adumbrated by the English Court of Appeal in Makanjuola, and subsequently approved and applied by the Court of Final Appeal in Wong Chi King.  We agree with Mr Lui that Pringle exemplifies a particular area of concern, namely cell confessions.  Indeed, we note that in the subsequent case of R v Stone[34], the same leading counsel who had acted for the appellant in Pringle, had submitted to the English Court of Appeal that[35]:

“… Makanjuola had been considered by the Privy Council in Pringle and Benedetto[36], and those authorities had carved out an exception in cell confession cases, so that there is at least a presumption in favour of a warning which sufficed to turn discretion into obligation.”

That the Privy Council in Pringle was not seen to be changing the well‑established approach to accomplice evidence in jury cases is further demonstrated by the fact that the case has only once been referred to in Hong Kong since it was decided in 2003; and only then in the context of the test for the application of the proviso[37].

36.  In our judgment, the “express direction” considered necessary in Pringle was concerned with the particular problem of cell confessions, where the motive which taints the witness’s evidence may not be obvious to a jury.  We further note that the Court in Stone considered, at para 84, that “in a case where the defence has deliberately not cross-examined the informant as to motive of hope of advantage, the law does not require the judge to tell the jury that, merely because the informant was a prisoner, there may have been such a motive”.  The Court held, at para 88:

“We reject (leading counsel’s) submission that intrinsic concerns about a potential motive to gain advantage with the authorities are so great as to require a direction, even though defence counsel has not alleged any in cross-examination. The submission is inconsistent with the Privy Council’s recognition in Pringle at paragraph 30 that there will be cases where it is appropriate to treat a prisoner as an ordinary witness about whose evidence nothing out of the usual need be said.”

37.  In the case before us, of course, no questions were asked by defence counsel at trial about D2’s expectation of a reduced sentence for giving evidence against the applicant, nor was there any admitted fact to that effect before the jury.  The matter was, however, addressed by both counsel in their final speeches and the judge rightly, in our view, warned the jury that they must take into account in assessing her credibility that she may be expecting a considerable reduction in her sentence for giving evidence against the applicant, and to ask themselves whether she might have been tempted to falsely incriminate the applicant in order to obtain a reduced sentence.

38.  This direction and its effect cannot be faulted. It properly warned the jury, in simple uncomplicated terms, that D2 was in a “special” category of witness because of her possible motive in obtaining a reduced sentence in return for testifying against the applicant.  It is true that the judge did not preface his directions by using the words “care” or “caution” in any of their variations or derivative forms: however, given his directions as to how they must consider her possible motive in giving evidence, he did not need to.  His meaning and his warning was clear.

39.  Before leaving this matter, we wish to address the situation where defence counsel has not sought to cross-examine an accomplice witness as to his or her motive in giving evidence against an accused.  Mr Grounds has suggested that since no question was put to D2 about her expectation of receiving a reduced sentence, it was all the more incumbent on the judge in the interests of securing a fair trial for the applicant to give the jury a full so‑called “caution” direction or warning, together with an explanation for the warning.

40.  It may be that sometimes defence counsel takes the view, given the particular abilities and capabilities of the accomplice witness with whom he is dealing, that he does not wish to engage the witness on his or her motivation for giving evidence against a co‑accused.  Counsel may well reason that the witness will be well‑prepared with an answer for a question that was readily foreseeable, and will not wish to give the witness the chance of assuming the high moral ground for pleading guilty when his client has not.  This matter was adverted to in HKSAR v Okuyama Yoshihiro[38], where the Court said, at para 35:

“We might also comment that defence counsel at trial did not make as much of the matter in either his cross-examination or his closing address to the jury as the judge did in his summing‑up, perhaps for sound tactical reasons. No doubt wary of the telling point made by Yamaguchi that he did not intend to be the only one to take the blame, given that both he and the applicant had agreed to traffic in dangerous drugs, it seems to us that counsel concentrated his attack on the more vulnerable aspects of Yamaguchi’s character, antecedents and previous travel history.”

41.  Accordingly, we wish to make clear that this Court will not assume that counsel’s failure to cross-examine an accomplice about his or her motive to obtain a reduced sentence is an oversight on the part of counsel to the detriment of the fair trial of the accused: for it may have been a deliberate tactical choice.  The terms of the judge’s response, therefore, should be seen in that context.

42.  In any event, in the present case, the possibility of D2 being motivated to give evidence against the applicant in return for a reduced sentence, was addressed by both counsel in their closing speeches, and by the judge in his summing-up.  The jury were appropriately warned as to how they should regard her evidence.

43.  Furthermore, we do not accept that the warning was diminished by attributing certain suggested concerns about the witness to defence counsel.  Nor do we think that that is how it would have been received or interpreted by the jury.  The judge was clear that, whatever the submissions of counsel may have been, the jury must take into account the fact that D2 was yet to be sentenced, and that she stood to gain a considerable reduction in her sentence for giving evidence against the applicant.  He further instructed them to ask themselves whether she might have been tempted as a result to falsely incriminate the applicant.

Conclusion

44.  Accordingly, we cannot accept the applicant’s argument, despite the attractive way in which it was put by Mr Grounds on his behalf.

45.  The application for leave to appeal against conviction must be refused and the appeal dismissed.