HKSAR v. LO WAI MING

CACC530/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 530 OF 2005

(ON APPEAL FROM HCCC 88 OF 2005)

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REASONS  FOR  JUDGMENT

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McMahon J (giving the judgment of the Court) :

1. The appellant was convicted after a trial before Lunn J and a jury of an offence of trafficking in 980.33 grammes of “ice”.  He was sentenced to 19 years’ imprisonment.  He sought leave to appeal his conviction.  On 11 May 2007, we treated the hearing of that application as the hearing of the appeal, allowed the appeal, quashed the conviction and ordered the appellant be retried on a fresh indictment.  We now give our reasons.

2. The prosecution case was that on 3 September 2004 at about 11:00 p.m., police officers saw the appellant alight from a parked private car near the junction of Pratas Street and Un Chau Street in Sham Shui Po.  He waved in the direction of a taxi turning into Pratas Street which then stopped.  The appellant approached the taxi and out of it stepped another person, Lau, who held a white plastic bag which was subsequently found to contain the charged drugs.  Lau handed the plastic bag to the appellant who then walked back towards the parked private car.  Before he was able to get into it, he was intercepted by a police officer who identified himself as such and displayed his warrant card.  The appellant then tried to run, but fell and was overpowered and handcuffed by the same police officer.  The plastic bag the appellant had been given by Lau had fallen beside the appellant and was seized by another police officer.

3. Subsequently, the appellant was arrested and cautioned in a laneway nearby and in response to the caution replied to the effect that the bag of “ice” was not his, but had been given to him by his “boss” Lau.  He admitted that he knew the bag contained “ice”.

4. The appellant testified at trial and his evidence was to the effect that he was a police informer, and had lured Lau to the scene so as to gather information about Lau’s involvement in dangerous drug activities, which information he intended to pass on to the police.

5. He was doing this because he had been arrested by police in July 2004 for a drug trafficking offence which he had committed, and for which he was on bail pending the matter coming before the courts.  He hoped to be able to obtain a reduced sentence for that offence as the result of his assistance to the police.

6. He said that when Lau arrived at Pratas Street and alighted from the taxi, he went up to Lau and spoke to him briefly, and Lau told him to park his car and go to a nearby restaurant and wait there.  He then left Lau and after walking a few steps was grabbed from behind and punched and pushed to the ground and handcuffed.  He saw Lau also grabbed by another person, but free himself and then run off down Pratas Street, but in doing so drop the white plastic bag nearby where the appellant had been pushed to the ground.  He only belatedly realized the men who had intercepted him and tried to intercept Lau were police.  He denied making any admissions at the time of his arrest and caution, and said at no time had Lau handed him the white plastic bag containing drugs.

7. Somewhat unusually perhaps, a video recorded interview of the appellant conducted on 5 September 2004 was produced in evidence by the defence as Ex. D1.  The purpose in doing so was to establish that as no admissions as to knowledge of or possession of the drugs were made by the appellant in the course of the interview, and nor was he asked about what he said when he was cautioned at the scene of his arrest, it was unlikely he had made the admissions the prosecution claimed were made.

8. Subsequently, both the appellant and Lau were jointly charged with trafficking in the drugs seized at the scene of the appellant’s arrest.

9. Lau pleaded guilty to the offence prior to trial with the result that the appellant went to trial as the sole defendant.  The charge he faced was particularized as a joint offence committed with Lau and was in similar terms as that to which Lau had pleaded guilty.  It was as follows :

“	STATEMENT OF OFFENCE
	Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.
	PARTICULARS OF OFFENCE
	LO Wai-ming, on the 3rd day of September, 2004, outside No. 162, Pratas Street, Sham Shui Po, Kowloon, in Hong Kong, together with LAU Chun-shu, unlawfully trafficked in a dangerous drug, namely 982.73 grammes of a crystalline solid containing 980.33 grammes of methamphetamine hydrochloride.”

10. Mr McGowan who appeared for the appellant advanced several grounds of appeal but we need to deal with two only.

11. The first we can deal with relatively briefly.  It is that the trial judge erred in treating Ex. D1 as being wholly exculpatory rather than as “mixed”, i.e. partly exculpatory and partly incriminatory, and thereby was wrong to direct the jury that the contents of the statement could not be relied upon by the appellant as proof of their truth.

12. In Ex. D1 the appellant had admitted knowing Lau (though he knew him by the name of Kui Kuo) for many years and that he had seen him in Pratas Street on the day of their arrest and had been in the process of meeting and briefly speaking to him when they both had been intercepted by police.  He admitted that Lau had been carrying a plastic bag at the scene which he said had been dropped when Lau had attempted to flee from the police and which he agreed had been found only 2-3 metres away from where he himself had been stopped.  He also admitted that cash of $25,000 odd had been found in his own car parked in Pratas Street after his arrest as well as $7,000 cash in his wallet.  He agreed that money was his.

13. Little of this was in issue, as the appellant gave evidence in broadly the same terms except that he said in evidence that he had arranged to meet Lau at that location rather than having accidentally met him there as he had claimed in Ex. D1.

14. In directing the jury as to the approach they should take to Ex. D1, the judge said :

“In cross-examination of Detective Police Constable 48555, the defendant, through his counsel, led into evidence a video record of interview – that is Exhibit D1 – conducted of the defendant on 5 September 2004.  It is wholly exculpatory in nature; that is, the defendant made no admissions in respect of this offence in that interview.  Accordingly, as I directed you at the time, it is not evidence of the truth of what the defendant said in the interview.

This evidence is relevant to two issues.  Firstly, having regard to what was said to the defendant and what he had to say in response in that video interview, his denial of knowledge, are you sure that the defendant made the earlier alleged oral admissions to Detective Police Constable 48555, in the rear lane?  Secondly, in respect of the defendant’s credibility only, he having given evidence in this case, if you accept his evidence that he lied to the police officer in the course of that interview, that is meeting with Lau in Pratas Street was accidental, then that is a matter that you can take into account in respect of his credibility; he admitted that he lied out of court.”

15. Mr McGowan complains that direction was wrong and that Ex. D1 should have been treated as the appellant’s “mixed” statement and therefore the jury should have been allowed to take the exculpatory parts into account as evidence of the truth of what those parts asserted.

16. We think Mr McGowan to be right regarding the “mixed” nature of Ex. D1.  In R. v. Garrod [1997] Crim. LR 445, Evans LJ said, regarding the often difficult question as to when a statement may be regarded as containing admissions :

“ … it was almost impossible to conceive of any series of answers which could not be regarded as containing some admission of relevant fact as well as a statement of innocence and denial of guilt.  The question was how to identify the kind of interview which contains enough in the nature of admissions to justify calling it ‘mixed’.

…

Where the statement contains an admission of fact which was significant to any issue in the case, meaning capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, the statement must be regarded as “mixed” for the purposes of this rule. …”

17. However it should not be thought that if the issues at a trial evolve so that a defendant’s case accords entirely with the contents of his statement to the police, the statement, on its face “mixed” or inculpatory, becomes then exculpatory in nature. 

18. In HKSAR v. Yuen Man Tung (2004) 3 HKC 279, this court differently constituted said of a submission to the contrary effect :

“17.  Mr Tam for the respondent argues that the statement made by the applicant to the officers is not a mixed statement because the matters said to constitute admissions against interest were in the event not live issues in the case.

18.  We do not think that the test propounded by Mr Tam is the proper test.  Whether a statement is or is not wholly exculpatory is not a question resolved by having regard to the issues which remain to be determined in the light of admissions made at the time of trial.  Its nature is to be determined rather by its contents at the time it is made.  If it is adverse to the person making it in relation to an important element of the offence charged — and this is not intended to be an exhaustive delineation, but merely one that suffices for the purpose of the present case — then self-evidently it is not wholly exculpatory. …”

19. Given the contents of Ex. D1 summarized above, while it came to be that they were broadly in accordance with the appellant’s evidence at trial and therefore made no admission as to any live issue, we have concluded that important parts of Ex. D1 were in fact inculpatory and that the statement as a whole should have been regarded as “mixed”.  As an exemplar, the appellant’s admission in Ex. D1 that the sum of $32,000 odd in total in his possession at the time of his arrest was the basis of cross-examination of him to the effect he had come to that location to meet Lau with sufficient money to make payment or part payment for the drugs that Lau was to provide to him.  

20. A statement which contains admissions does not change in nature simply because the matters the admissions pertain to become dead issues at trial.  The statement, if “mixed” in its nature, remains so.  Nor do those admissions have to directly go to an element of the offence.  They may be circumstantial in nature.  But if they are such as to be able to materially assist the prosecution to prove its case against the defendant they render the nature of the statement “mixed”. 

21. But even though the statement was wrongly categorized as wholly exculpatory, in the circumstances of this case no prejudice was suffered by the appellant.  That is quite simply because the judge was asked to treat it as such by defence counsel at trial.  This exchange occurred :

“COURT:   Before we go any further, I’d like some assistance from you, Mr Pang, as to what it is you wish done with these statements and these records of interview, and what evidential status they have?

MR PANG:   My Lord, yes, I would like the tape to be produced and the transcripts, of course, being an aid to their understanding.  Evidential status, certainly is not that of truth of the contents, certainly it would be hearsay and being totally exculpatory would not fall within any of the exceptions.

COURT:     So that’s how you categorise it, totally exculpatory?

MR PANG:     Yes, my Lord, I would say it’s exculpatory.

COURT:     Thank you.

MR PANG :    But, my Lord, I would categorise…

COURT:     Just a moment.  Yes.

MR PANG:     I would categorise it as real evidence.

COURT:     To what use is it to be put by the jury?

MR PANG:     That, my Lord, it is to show to the jury that questions were not put as should have been put, as one would have expected it to be put.

COURT:     That’s the detail, but in principle, what is the purpose that it is to be used for?

MR PANG:     My Lord, it isn’t as real evidence, that what something was done or was not done, instead of as truth of their contents.

COURT:     To what is it relevant, what issue in the trial is it relevant?

MR PANG:     It is relevant, my Lord, as to whether or not the so-called verbals were actually made.

COURT:     And that is the link, you say, to for example the failure in the second record of interview to address the earlier oral admission.

MR PANG:     Yes, my Lord.

…”

22. It is quite plain that the sole reason defence counsel wished to produce Ex. D1 in evidence was to rely not on what was said in that interview, but to rely on what was not said; that is, to demonstrate that its contents conflicted with the verbal admissions the prosecution alleged had been earlier made by the appellant at the time of his arrest.  Its production was allowed on that narrow basis.

23. It is plain from what defence counsel told the judge that he had no intention of otherwise relying on Ex. D1’s contents to support the defence case.  That was a sensible approach by defence counsel as the contents of Ex. D1, so far as they were exculpatory, were rendered of little practical weight once the appellant elected to give evidence.  The real issue then became whether the jury accepted the appellant’s evidence rather than what he had told the police during the course of his interview.

24. The judge’s direction wholly accorded not only with the only real purpose for which the jury could have used Ex. D1, but also with defence counsel’s stated purpose in producing Ex. D1.  We want to emphasize that it will be only in exceptional circumstances that this court will find that a defendant at trial has been prejudiced by a judicial direction to a jury when that direction has either expressly or by necessary implication been given at the request of defence counsel.  In the present case the appellant was in no way prejudiced by the judge’s direction which, in the circumstances of the case, did not amount to a material misdirection or irregularity.  This ground of appeal was misconceived.

25. That brings us to the second of the grounds of appeal we wish to address.

26. That ground is to the effect that the judge failed to direct the jury to ignore a suggestion made to the appellant by prosecuting counsel during the course of cross-examination that the appellant had failed to call Lau as a witness supporting the appellant’s case because the appellant knew Lau had pleaded guilty to trafficking in dangerous drugs with him.

27. That portion of the evidence was as follows :

“Q.   Mr Lo, I’ll start with the evidence that you’ve given this morning because it’s probably the freshest in our minds at the moment.  How long had you known this person Mr Lau?

A.  Ten-odd years.

Q.  And he was a good friend of yours, wasn’t he?

A.  Yes.

…

Q.  Are you calling Mr Lau to give evidence?

A.  No.

Q.  Why not?

A.  If he would learn about my identity in court, I would be in trouble.

…”

This was a reference to the appellant’s identity as a police informer, and the appellant’s case that he had met Lau in Pratas Street on the occasion of their arrests in order to gather evidence about Lau’s drug trafficking.  The evidence continued :

“Q.  You see, he wouldn’t learn about your identity in court because he would not be in court when evidence about your identity was given.

A.  Are you saying that even if he comes to court, he would not know about my identity when he appears in court?

Q.  No, because if he was to be a witness, he would not be in court until after you had given your evidence.

…

Q.  See, the reason you’re not calling Mr Lau is because you know he pleaded guilty to taking part with you in this drug transaction.  You know that, don’t you?

…” [Emphasis added]

This final question of prosecuting counsel’s quite simply should never have been asked.

28. It was asked in a context which was itself of debatable propriety, that is the questioning of the appellant as to why he was not intending to call this particular witness.

29. Such a line of cross-examination may, depending on the circumstances of the case, be itself objectionable, see R. v. Gallagher [1974] 59 Cr.App.R. 239, R. v. Couzens [1992] Crim. LR 882, R. v. Wilmot [1989] 89 Cr.App.R. 341 and a prosecutor should perhaps be circumspect about adopting such a course without firstly having raised the matter with the court.  It is only in relatively limited circumstances that a judge is likely to make or allow adverse comment on the failure of the defence to call a particular witness, and where a judge intends not to do so, but to perhaps instead give a direction that the jury should not speculate about the absence of a particular witness, then cross-examination or comment by the prosecution as to the absence of that witness in the defence case is to be avoided.  But we do not have to decide the parameters of any principle determining when such questioning or comment is appropriate because counsel’s questions in the present case went much further than that.

30. By his final question, prosecuting counsel put to the appellant in direct and unqualified terms that Lau had pleaded guilty to the same offence for which the appellant was on trial, and more importantly had done so on the basis that he had committed the offence together with the appellant.

31. That information should never have been before the jury.  It had the dangerous potential of leading the jury to conclude the appellant was guilty because another accused had pleaded guilty to committing the offence together with him.

32. It does not matter that the answer of the appellant was to the effect that he did not know of Lau’s plea of guilty.  The question was rhetorical and couched as a statement of fact, and coming from a prosecuting counsel representing the Department of Justice would have had the same prejudicial effect regardless of the appellant’s answer.

33. The effect of this particular question was magnified by what transpired later in the cross-examination of the appellant :

“Q.  I put it to you that the police did not give you copies of statements made by other arrested persons.

A.  I don’t agree.

Q.  Did you get a copy of Mr Lau’s statements?

A.  Yes, I do.  When I was in the detaining centre, I had a whole copy of it.  The police brought it to me.  However, Lau Chun-shu did not give a video-recorded interview.  He only gave a written cautioned statement.  He even wrote characters on the statement.  I had copies of all those.

Q.   So therefore, if it was to your advantage, you could call Mr Lau to give evidence, couldn’t you?

A.  The fact was I was provided with Mr Lau’s statements by the police.  If Mr Prosecutor would like to summon Mr Lau to testify this point, you can go ahead.

…” [Emphasis added]

34. This passage of evidence arose in the context of the appellant explaining that he had not initially told the police that he had been seeking to meet Lau in his capacity as an informer, as he believed any statement he made to that effect would have been provided to Lau, as Lau’s statement had been provided to him.

35. The final question on this occasion asked by the prosecutor seized upon the evidence of the appellant to the effect he had been provided with Lau’s statement, so as to suggest that if there was anything in the statement to the appellant’s advantage, he would have called Lau as a witness.  The unspoken but clear suggestion was that Lau’s statement contradicted the appellant’s version of events.

36. The effect of counsel’s questions, especially when taken together, was highly prejudicial.  Firstly, the jury were effectively informed that Lau had pleaded guilty to and thereby had admitted acting together with the appellant in committing the offence charged.  This alone was highly prejudicial and, since it did not come from the oral testimony of Lau himself, was of no probative value.  This prejudice was compounded by the later oblique but meaningful reference to the contents of Lau’s statement to the police.  By these questions prosecuting counsel was getting in through the back door what he could not get in through the front.  The course adopted was wrong and we hope not to see its repetition in future trials.

37. No specific direction was given to the jury to ignore prosecuting counsel’s reference to Lau’s plea of guilty or to the contents of his statement to the police.  We can understand that the judge was caught unawares by counsel’s questions coming as they did on each occasion from out of the blue, and it may well have been at the end of the day it was thought, as Mr Leung for the respondent submitted to us, that the giving of no direction was the better course on the basis that if any such direction had been given it may well have simply brought back afresh to the mind of the jury the same subject matter.  But we do not think that is a sufficient answer, particularly given the circumstance of there being the two separate passages of cross-examination set out above.  There was at the least a very real danger that the jury would have borne in mind, during their deliberations, the powerful suggestion that Lau had pleaded guilty to trafficking in drugs with the appellant.  In the event, it may be that a direction to the jury in suitable terms would not have cured the prejudice and that the appropriate course in such circumstances would have been to discharge the jury.

38. In our view these matters amounted to a material irregularity in the conduct of the trial.

39. We considered whether the proviso contained in section 83(1) of the Criminal Procedure Ordinance could apply, but concluded that because of the highly prejudicial nature of counsel’s questions, we cannot be satisfied that the jury would have arrived at a conviction in any event.

40. For these reasons we treated the application as the hearing of the appeal, allowed the appeal and quashed the conviction.

41. Having heard counsel we thought it appropriate that the appellant be retried on a fresh indictment and so ordered.  Costs were awarded to the appellant both in this court and the court below, to be taxed if not agreed.