HKSAR v. LAU WAI KIT

CACC 360/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2015

(ON APPEAL FROM HCCC NO. 467 OF 2014)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave to appeal against his conviction after trial by Deputy High Court Judge Woo and a jury on 25 September 2015 of one count of trafficking unlawfully in a dangerous drug on 7 August 2014, namely 202 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The Trial

The prosecution case

2.  At about 6:35 p.m. on the evening of 6 August 2014, Ms Liu Lai Kuen, a security guard at Yat Tung Estate in Tung Chung was conducting a patrol of Yung Yat House.  On reaching the fire/smoke door opposite Room 2801 on the 28^th floor, she saw four white transparent packets on the floor.  As a result, she reported her discovery to her supervisor, Mr Luk Chi Pan.  He and another colleague joined her at that place.  There, they all noticed a dark-coloured shoebox protruding under a beam beneath the ceiling.  Ms Liu left the scene of their discovery, leaving behind her colleagues, and made a report to the police.

3.  At about 7:26 p.m. several police officers arrived at the scene and confirmed the observation of four packets on the floor above which was a shoebox lodged on a beam underneath the ceiling.  Throughout the night until early the following morning different teams of police officers kept observation on the scene of that discovery.

4.  At around 1 a.m. on 7 August 2014, the shoebox dropped to the floor disgorging six more white transparent packets.  Using latex gloves Sergeant 51716 put all 10 packets into the shoebox, which he then lodged in the gap between the horizontal beams.  Now it was no longer protruding from the beam.

5.  At around 8.36 a.m., PC 47864, who was keeping watch at the rear staircase outside Room 2801, saw and heard the applicant walking down the stairs to the 28^th floor, looking around nervously, as he made his way to the area outside the meter room.  PC 47864 followed the defendant and saw him standing with his back to the police officer outside the meter room.  There the defendant raised both arms and jumped up and used his hands to pull down the black cardboard box jammed on the beam.  Then, PC 47864 stopped him and revealed his identity as a police officer.  In response, the defendant dropped the shoebox to the floor where its content of 10 plastic bags fell out.

6.  In response to PC 47864’s declaration that he was a police officer and his enquiry as to what the applicant was doing there, the applicant remained silent.  When asked where he lived, the applicant replied that he lived at Fuk Yat House, in the same estate.  When asked what he was doing there, the applicant said that he came to smoke cigarettes.  PC 47864 asked why the applicant had chosen to come to that place to smoke.  Then, he arrested the applicant for possession of dangerous drugs.

7.  In a video recorded interview, conducted of the applicant under caution between 20:36 and 20:57 hours on 7 August 2014, the applicant confirmed that he lived at Fuk Yat House, Yat Tung Estate, which he said was a few blocks away from Yung Yat House.  At 8:36 a.m. on that day he had been on the 30^th floor of Yung Yat House.  He was there to smoke cigarettes, but had yet to commence smoking.

8.  It was an admitted fact that CCTV footage obtained from the lobby and lift of Yung Yat House depicted the applicant entering the lobby of the building at about 8.30 a.m. on 7 August 2014 and entering the lift shortly afterwards, after which he exited the lift about 40 seconds later.

The defence case

9.  The applicant gave evidence and called Chan Ka Lun to give evidence in the defence case.  The applicant testified that he had never been into the meter room on the 28^th floor of the Building.  He was at the staircase between the 29^th and 30^th floors when PC 47864 and Woman Sergeant 55250 intercepted him and harassed him.  He had no knowledge about the shoebox or the dangerous drugs inside.

10.  The applicant confirmed that he lived at Fuk Yat House in Yat Tung Estate, which was about the distance of a football pitch away from Yung Yat House.  He was present at Yung Yat House on the morning of 7 August 2014 in order to visit his friend, Chan Ka-Kuen, who had called him between 5 a.m. and 6 a.m. that morning and asked the applicant to visit him.  When the applicant arrived at the lobby sometime after 7 a.m., a female security guard told him not to go up as police officers were working there.  He left, returning at around 8:30 a.m. and took the lift to the 28^th floor, where he exited the lift on the 30^th floor and walked to the rear staircase to smoke.  Then, he was intercepted by a male and female who declared their identities as police officers. 

11.  In the ensuing conversation the applicant said that he was asked to produce his identity card and asked why he had gone there and where he lived.  Then, the male officer squeezed his shoulder and, having made a fist of his hand, asked the applicant if he had come up there to get something.

12.  When the applicant took out his mobile telephone to film the police, the female Sergeant took his phone and he was handcuffed.  Then, he was pulled down the staircase to the 28^th floor, where he was pushed against the wall and sworn at by the male officer.  The applicant was co-operative throughout and gave his mobile phone code to the female sergeant. 

13.  The applicant said that at one point, he was pulled outside the staircase, and then pulled back to the rear staircase.  When asked whether the person who called him had told him to “get the stuff” and if he had anything to say, the applicant did not answer.  He only said “I did not commit any crime.  If there is anything, you can arrest me, you can take me to the police station.”  Finally, another police officer told the applicant that he was charged with possession of a dangerous drug, after which he was taken to the police station.  The applicant testified that the answers that he had given in the video recorded interview were true.

14.  Chan Ka Luen said that he lived at room 3004, 30^th floor Yung Yat House.  He had known the applicant since primary school, and the applicant frequented his home.  Chan Ka Luen confirmed that he had made arrangements to see the applicant that day.  He said that his mother did not allow people to smoke in the house, so he thought it was possible the applicant had walked down half a floor to smoke.

Grounds of appeal

15.  In the grounds of appeal against conviction advanced on behalf of the applicant, Mr Albert Poon submitted that the judge had failed to direct the jury properly on the drawing of the inference of knowledge in the applicant of the presence of the dangerous drugs.  In particular, he contended that the judge erred in directing the jury that the failure of the applicant to give an explanation to contradict an inference of knowledge made it the only reasonable inference.

The respondent’s submissions

16.  For the respondent, Ms Denise Chan submitted that the judge directed the jury correctly as to the drawing of inferences adverse to the applicant, in particular in relation to the circumstantial evidence.  She contended that the judge’s direction, in respect of the absence of any explanation from the applicant as to why he pulled the shoebox from where it was wedged in the beams and of his knowledge of its contents, did not have the effect of elevating an inference into the only reasonable inference.  In any event, the judge had repeatedly directed the jury correctly as to the burden and standard of proof [1] and that the resolution of the facts was a matter for them.[2]

A consideration of the submissions

The issues

17.  At an early stage in the summing up, the judge directed the jury that:[3]

“ ...the main issue between the parties is whether the defendant was stretching out his hands for the shoebox wedged in the crossbeam and whether he knew the box contained a DD.”

18.  Of those issues, the judge went on to direct the jury:[4]

“ If you accept PW8’s evidence, that the defendant was reaching out his hands to get the box, and getting the box, that is direct evidence of the defendant’s possession of the DD. Of the box and the DD inside. But throughout this case, there is no direct evidence of the defendant’s knowledge of the DD. Where is the evidence that he knew what was contained in the box was DD? No evidence. No direct evidence. Now, in this case, there is only circumstantial evidence from which you can draw the irresistible inference of the defendant’s knowledge of the DD against him....................... Whether you can reach, you can draw an irresistible inference, I will explain that later.”

Circumstantial evidence

19.  Of the circumstantial evidence, the judge said:[5]

“ Now, circumstantial evidence simply means the evidence of various circumstances relating to the crime and the defendant, which the prosecution says, when taken together, will lead to the sure conclusion that it was the defendant who committed the crime. That is, all the circumstances linking the crime and the defendant together.”

20.  Having directed the jury of the differences between direct evidence and circumstantial evidence the judge said: [6]

“ ...when PW8 was laying ambush in the staircase, he found the defendant acting furtively, coming down the staircase from above onto the landing of the 28th Floor. He saw the defendant reaching his hands up to the beam, and got the shoebox. He immediately ran out to ask him what he was doing. The act of having the shoebox in his hands is direct evidence of possession, as I said. But that is not direct evidence of knowledge of the content of the shoebox, mainly (namely?) the DD.”

Inferences

21.  Then, the judge went on to give the jury the ‘special direction’ [7] in respect of inferences:[8]

“ Now, you are entitled to draw inferences. That’s what I said, I will come to this inference thing. In other words, if you find certain facts proved, you are entitled to infer the existence of other facts, although those facts are not proved as such, but you can infer from the evidence you find, you are satisfied, you are sure about, to find other facts from those facts that you are sure about. Now, you may only draw inference if the inference is the only reasonable inference to draw from the proved facts. Now, let me explain. So if from a set of facts that you are satisfied, you find proved, there is a reasonable inference to draw against the defendant, as well as a reasonable inference to draw in his favour, therefore there are two inferences, one in his favour, one against him. Then you must not draw the adverse inference. Because another inference is in his favour. When there is a doubt, you do not rely on one of the reasonable inferences. You rely on the only reasonable inference, or the only irresistible inference.”

22.  Next, the judge reminded the jury that there was direct evidence that the applicant had been seen “...getting the shoebox from the beam” and that before doing so “...he was observed to have looked around nervously.”  Of that, the judge said:[9]

“ It can be suggested the only reasonable inference to draw from those facts is that the defendant knew he was getting a dangerous drug. Why should he act furtively? Why should he be nervous otherwise?” [Italics added.]

23.  It is to be noted that the judge had said “it might be suggested”, not that the prosecution made that suggestion, in pointing to evidence from which the only reasonable inference to be drawn is that the applicant knew that the shoebox containing dangerous drugs.

24.  The judge went on to suggest to the jury another reasonable inference that might be drawn:[10]

“ Now, the defence might say, however, another reasonable inference, the defence might say that although this might be one reasonable inference to draw, it is not the only reasonable inference, because another inference that one may reasonably draw is that the defendant had been told to get something, not drugs, to get something from there for someone else. Right, that can be argued. Now, and of course, when that is argued, it has to be shown the defendant did not look around nervously. Why should he be nervous if he is told to get something from there? But I mean, if he may not be acting nervously, then you can have support for this theory, because the defendant, he was not looking around nervously. He was looking around, because he was merely looking for the place where he was told the shoebox could be found. All right, that is another reasonable inference. Well, of course, this inference is not in accordance with the defendant’s own evidence. He never said that. All right.”

25.  Again, it is to be noted that, in addressing the issue of whether or not any other reasonable inference arose, the judge had said “the defence might say”, not that the defence did say that.

26.  Then, the judge went on to identify evidence from which he suggested to the jury, “...you may draw an irresistible inference” of knowledge in the applicant of the dangerous drugs inside the shoebox:[11]

“   Now, the following evidence, I will tell you the evidence from which you can draw an irresistible inference, or you may draw an irresistible inference. The following evidence, if you are sure it is true, may allow you to draw an inference of knowledge of the DD inside the cardboard box, inside the shoebox, which the defendant had got into his possession. [Italics added.]

   Namely, one, the defendant was not living in Yung Yat House, and he went there purposely to get the box. But the defendant’s evidence contradicts this. He says he went there to visit Chan. Now, that’s why this fact is not very strong, because he said, if you believe him, he may be going to see his friend Chan that day, then he could be there, although he did not live in Yung Yat House.

   Two, the defendant’s excuse of going to the rear staircase of the 28th Floor to smoke was untrue, because he was found to have an unopened packet of cigarettes.  Meaning that he had not opened the cigarettes yet, and he had not smoked inside Yung Yat House.  And it (he) was not smoking there, showing that his sole purpose was to go there to get the box.  Then he must know the contents being DD.  That is the second set of facts.  [Italics added.]

   Third, he was observed to have looked around nervously. And also, when PW8 revealed his identity, he wanted to escape. Now, this perhaps shows that he knew that he was going to get the DD.

   And four, there was nothing else inside the box except the DD.  What else he was trying to get?  He must have known the content being the DD.   [Italics added.]

  Five, the place over the beam is a secret place, and the person who was getting the box from it, that is, the defendant, must know the content.  It is a secret place, I mean, since the sergeant, the male sergeant put it up there, nobody could see it outside.  I mean, he cannot say he went in, because it is strange for a box to protrude down.  Nobody can see anything there.  And he knew that secret place, and he must have known the contents.  Unless he knew the place, he would not have gone inside to get the box, and that must be he knew that shows, or helps you to draw the inference that he knew the contents.  Now, there has been no explanation from the defendant why he was getting the box from there, because his story is entirely different.  He has given no explanation, because that does not tally with his story at all, and there is nothing in the evidence that helps explain the defendant had no knowledge of the DD inside the box.  No explanation.  That means there is no evidence to contradict the inference of his knowledge of the DD, making it the only reasonable inference, because there was no explanation offered.  [Italics added.]

27.  It is clear from the judge’s summary of the “matters raised by both counsel” [12], which was clearly a reference to their closing speeches [13], that the considerations that he enumerated were not matters prayed-in aid by the prosecution in any invitation to them to infer the applicant had knowledge of the presence of the dangerous drugs in the shoebox.  Similarly, they were not matters to which counsel for the defence adverted.  It follows, that the judge’s directions did not reflect the way in which the prosecution and the defence had closed their cases.  Neither of them referred to the drawing of inferences.  There is nothing in the papers available to us that suggest in any way that there was any discussion between the judge and counsel as to the directions that would be given in the summing up and, in particular, the directions in respect of inferences.

28.  In their judgments in Tang Kwok Wah v HKSAR [14] the Court of Final Appeal addressed the circumstances in which it was appropriate for a judge to direct a jury in terms of the ‘special direction’.  In his judgment Bokhary PJ said:[15]

“ Special direction normally unnecessary

   It is normally unnecessary to give the jury any special direction on how they are to approach circumstantial evidence.  Whether the prosecution’s case depends wholly or in part on circumstantial evidence, it is normally sufficient that the jury be directed that they may not convict unless they are sure of guilt.”  [Italics added.]

29.  In his judgment, having noted that in McGreevey v DPP [16] the House of Lords had determined that the giving of a ‘special direction’ was not required as a matter of law, Sir Anthony Mason NPJ cited with approval the speech of Lord Morris of Borth-y-Gest :

“ Further, his Lordship said (at 437):

“ To introduce a rule as suggested ... would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of a summing-up to classify evidence into direct or circumstantial...” ”

30.  With respect to the judge, he ought to have canvassed with counsel the issue of whether or not, in the exercise of his discretion, he ought to give the ‘special direction’ to the jury.  In particular, the judge ought to have discussed with counsel the ambit of the evidence which the judge was considering directing the jury may allow them to draw an inference of knowledge in the applicant of the dangerous drugs inside the cardboard box.  Obviously, that ought to have been done before closing speeches, so that counsel were informed of the basis on which the jury would be directed.  Then, they would have been in a position to choose whether or not to engage that issue in their closing speeches.  They were not so informed and neither of them addressed the issue of drawing inferences in their closing speeches.

31.  As noted earlier, the judge told the jury that the “following evidence”, which he enumerated, was evidence which “if you are sure it is true, may allow you to draw an inference of knowledge of the DD inside...the shoebox.”  Earlier, the judge had given the jury the standard directions that it was for them to determine “the facts of this case”.[17]  He repeated that direction in his concluding remarks.[18]

32.  With respect to the judge, it is difficult to understand how the undisputed facts that the applicant was present at Yung Yat House, albeit that he did not live there, was evidence upon which the jury might infer that he knew that the shoebox contained dangerous drugs, either taken by itself or in conjunction with the other evidence to which the judge referred.  Similarly, it is difficult to understand how his account of going there to smoke was rendered untrue “because he was found to have an unopened packet of cigarettes”, let alone that, in consequence “he must know the contents being DD.”  In so far as those two matters were relevant, they were relevant to the issue of credibility of the applicant, not to the issue of whether or not it was to be thereby inferred that he had knowledge of the presence of dangerous drugs in the shoebox.

33.  Of the fourth matter to which the judge referred, namely that the shoebox contained only dangerous drugs, the circumscribed nature of the defence case is relevant.  The defence case was simple: he was in Yung Yat House to visit his friend Chan Ka Lun and he had diverted to have a cigarette before he went to his home.  He was not there for any other purpose.  He did not go to the landing on the 28^th floor, reach up and pull down a box that was wedged in the beams underneath the ceiling.  It was not his evidence that he “had been told to get something, not drugs, to get something for someone else.”  Having invited the jury to consider that as a reasonable inference to draw in favour of the defence, the judge acknowledged that was “not in accordance with the defendant’s evidence.”  The judge’s direction to the jury was an impermissible invitation to speculate. This evidence had no probative value on its own.  It only became of probative value if the jury rejected the applicant’s evidence and accepted the police officers’ evidence and if the jury then found that the applicant retrieved the box knowing that it was concealed between the two beams.  The fact that the applicant knew of the location of box hidden as it was and that he went to the box intending to access it, when combined with the fact that the box contained only drugs, are primary facts from which an inference could be drawn that the applicant knew the contents of the box.

34.  The third matter to which the judge referred, namely that the applicant looked around nervously as he approached the place where the shoebox was wedged between the beams underneath the ceiling, was clearly relevant to the jury’s consideration of whether or not the applicant knew that the box contained dangerous drugs.  It resonated with his earlier direction in respect of the evidence of the applicant acting furtively and appearing nervous.[19]  Similarly, the fifth matter, namely that the applicant retrieved the box from a secret or concealed place, was evidence that was relevant to that issue.  Again, these matters only became relevant once the jury had both rejected the applicant’s evidence and accepted the police officers’ evidence.

35.  In respect of the second, fourth and fifth matters to which the judge referred, he said of the applicant “he must know” and “he must have known” that the shoebox contained dangerous drugs.  Having made a similar observation in respect of the fifth matter, finally the judge gave the jury the more appropriate direction, namely that “...helps you draw the inference that he knew the contents.”  Of course, the appropriate direction was that it “may help you” draw the inference.

36.  The judge was accurate in directing the jury that “there has been no explanation from the defendant why he was getting the box from there” and “there is nothing in the evidence that helps explain the defendant had no knowledge of the DD inside the box.” [20]  Of course, as to the former matter, as the judge pointed out, that was because the applicant’s case was “entirely different”.  It was the applicant’s case that he was on a different floor of the building and had not retrieved the shoebox.  However, the judge went on to say :

“ That means there is no evidence to contradict the inference of his knowledge of the DD, making it the only reasonable inference, because there was no explanation offered.”

37.  Whether or not the jury drew an inference that the applicant knew that the shoebox contained dangerous drugs was a matter for them.  It was not for the judge to direct them that, there being no evidence to contradict that inference, it was “the only reasonable inference”.  That was material misdirection.

38.  Although the judge had told the jury prior to and subsequent to that direction that resolution of the facts was a matter for them and that the evidence “may allow you to draw an inference of knowledge”, the judge’s directions in respect of the five factual matters to which he made reference were overly prescriptive in tone “he must know the contents being DD” and culminated with the impermissible direction that the inference of that knowledge was the only reasonable inference.  Furthermore, we are satisfied that two of the five items of evidence, to which we referred earlier, were not matters from which an inference could properly be drawn of knowledge of the dangerous drugs in the shoebox.  They were material misdirections.  Of course, it is not known what use, if any, the jury made of that evidence in reaching their verdict.  In the result, we are satisfied that the applicant’s conviction must be quashed.

Conclusion

39.  Accordingly, treating the hearing of the application for leave to appeal against conviction as the hearing of the appeal, we allow the appeal and quash the conviction.

Retrial

40.  Having been asked to address the issue whether or not the prosecution would seek a retrial of the applicant if the Court quashed his conviction, Ms Chan indicated that the prosecution would seek a retrial.  She said that the alleged offence was serious and indicated that the prosecution witnesses were available to testify at a retrial.  She invited the Court to note that the applicant had been sentenced to 7½ years’ imprisonment and had been in custody since 7 August 2014.  So, if he was to receive the anticipated remission of sentence on one-third for good behaviour, the applicant had served less than half of the sentence of imprisonment.

41.  Although Mr Poon opposed the application for a re-trial, only on the basis of the length of imprisonment that the applicant had served at the date of the hearing in this court, we are satisfied that, for the reasons advanced by Ms Chan, it is appropriate to order a retrial, which order we make.

42.  We order that the applicant is to be retried by another judge on the same count on a fresh indictment, which is to be filed with the Court within 14 days hereof and that the matter is to be listed for hearing by the Listing Judge for the fixing of trial dates within 28 days hereof.

[1] Appeal Bundle, pages 11 T - 12 D; 13 C-F; 14 T; 16 G-N; 18 S.

[2] Appeal Bundle, page 10 Q; 11 K; and 51 F.

[3] Appeal Bundle, page 19 P-S.

[4] Appeal Bundle, pages 34 Q - 35 D.

[5] Appeal Bundle, page 44 K-N.

[6] Appeal Bundle, page 45 I-N.

[7] Specimen Directions 21.2 and 21.3 of the Judicial Institute’s Specimen Directions in Jury Trials.

[8] Appeal Bundle, page 45 N - 46 C.

[9] Appeal Bundle, page 46 E-H.

[10] Appeal Bundle, page 46 H-Q.

[11] Appeal Bundle, pages 46 Q - 47 U.

[12] Appeal Bundle, pages 39 C - 43 F.

[13] Mr Ian Polson for the prosecution and Mr Paul Leung Chiu Lam, for the appellant.

[14] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209.

[15] Tang Kwok Wah v HKSAR, paragraph 11.

[16] McGreevey v DPP (1973) 57 Cr App R 424.

[17] Appeal Bundle, pages 10 Q and 11 K.

[18] Appeal Bundle, page 51 F.

[19] Appeal Bundle, page 46 D-G.

[20] Appeal Bundle, page 47 Q-T.