HKSAR v. YEUNG CHUN HIN

CACC 121 /2019

[2023] HKCA 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2019

(ON APPEAL FROM HCCC NO 290 OF 2018)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant was indicted on two counts, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, but only convicted of the second count, following a trial before A Pang J (as A Pang JA then was)  (“the judge”)  and a jury. He was sentenced to 15 years and 3 months’ imprisonment. This was the second trial the appellant had faced, his conviction at his first trial before a different judge having been overturned on appeal by this Court in 2018 and a retrial ordered[1].

2.  On 4 January 2022, following his retrial, the appellant was granted leave to appeal against conviction[2] on a single ground, which was a complaint that the judge had failed to direct the jury how to approach an inconsistent police statement of the appellant’s daughter (“MFI-3”), who had been called as a defence witness (“DW2”).  The truth of the contents of this statement, which were highly prejudicial to the appellant, had been disavowed by DW2 in her evidence. 

3.  On 7 January 2022, the appellant filed a notice to renew his application for leave to appeal on the grounds of appeal which had been refused leave; however, further submissions filed on 10 May 2022 by the appellant’s counsel, Mr Jeremy Cheung and Ms Angel Wong, have focused only on the ground of appeal relating to MFI-3, on which leave to appeal had been granted.  The other grounds have been abandoned.   

An overview of the case

4.  In understanding the complaint, it is necessary to have an appreciation of the entirety of the evidence relating to both counts on the indictment and the events which unfolded on 11 October 2015.  Count 1, of which the appellant was unanimously acquitted by the jury, related to two packets of dangerous drugs, together comprising 16.8 grammes of a crystalline solid containing 16.5 grammes of methamphetamine hydrochloride (commonly known as “Ice”), allegedly found in the appellant’s left sock when intercepted by police in the small hours of the day in question outside his rented house in Kam Tsin Tsuen, Sheung Shui, New Territories.  Count 2, on which the appellant was convicted by a majority, concerned the appellant’s trafficking in 513.75 grammes of solid containing 315.67 grammes of methamphetamine hydrochloride and 44 tablets containing 0.56 gramme of midazolam, all of which were seized from a locked bedroom (“the bedroom”)  on the 1^st floor of appellant’s home. 

5.  It was not disputed at trial that the drugs in Count 2 and associated paraphernalia were found inside the bedroom[3]: the essential issues for the jury were the appellant’s knowledge and possession of the dangerous drugs in question. 

6.  The prosecution relied on the admissions of the appellant, including those admitting possession of the key to the bedroom and the drugs found therein.  By contrast, the appellant denied that he had made any admissions, claiming that the police had used improper means to make him sign on a police notebook; and further testified that the drugs in the bedroom belonged to an acquaintance, to whom he had sublet the room.  DW2 was called to reinforce the appellant’s account of what took place when the police entered the premises, as well as the existence of the acquaintance.

The prosecution case

7.  It was alleged that when the appellant emerged from the house, the police officers who had been keeping the premises under observation intercepted him and found on his person the subject matter of Count 1, as well as a telephone, some cash and a key pouch containing three keys. 

8.  The appellant allegedly made four admissions in the course of the ensuing events.  The first was at the time of the initial arrest and caution outside the house, when the appellant claimed that the drugs in Count 1 were for his own consumption (the 1^st admission).

9.  The arresting officer, PC 7278 (“PW1”), then used two of the keys in the key pouch found on the appellant to open the main gate and the main door to the premises.  The appellant thereupon immediately admitted under caution that the two keys belonged to him (the 2^nd admission).

10.  The appellant’s wife and his daughter were inside the premises watching television in the living room.  PW1 used a third key found on the appellant to open the door to the bedroom on the 1^st floor of the house, where 8 packets of “Ice” and 5 foil packs of midazolam, the subject matter of Count 2, were found.  The appellant again immediately admitted under caution that the third key also belonged to him (the 3^rd admission). 

11.  The dangerous drugs found in the bedroom, namely the “Ice” and midazolam tablets, had a street value of HK$162,345[4] and HK$2,200 respectively.  20 transparent re-sealable plastic bags, a bowl and spoon and two sets of electronic scales were also found in the bedroom.  Traces of “Ice” were detected in the bowl, the spoon and one of the sets of electronic scales.

12.  The appellant was again cautioned and immediately confessed that the dangerous drugs, the plastic bags, the spoon and the electronic scales all belonged to him and had nothing to do with his wife or daughter.  He further stated that only he had the key to the bedroom and his wife and daughter knew nothing about the matter (the 4^th admission).

13.  PW1 made contemporaneous records in his notebook of the above four admissions, and the appellant duly signed next to each of them in the notebook.  Upon his subsequent arrival at Sheung Shui Police Station, PW1 made a post-record of the events and admissions at the scene and the appellant again signed on the same.  These admissions were held to be admissible following a voir dire.

14.  The prosecution case was that the appellant was a drug dealer, who was at the time caught making a delivery of the drugs in Count 1; the bedroom in the premises being the place where he was storing the dangerous drugs in Count 2.

The defence case

15.  The appellant at trial denied having any drugs on him when he was stopped outside the house.  As for the dangerous drugs found in the locked bedroom, he claimed these belonged to an acquaintance known as Chan Yuk-wa (“Chan”), who was also known and referred to at trial as “Wa Chai”, to whom he had sublet the room.  He denied making any of the above alleged admissions and claimed to have signed on PW1’s notebook involuntarily.  DW2 was called in relation not only to the events which took place inside the premises on the night in question, but also as to her knowledge of the existence of Chan, whom she said she would address as “Uncle”.

16.  The appellant in his testimony denied being in possession of the drugs in Count 1, or the cash or the key pouch.  He said he had sublet the bedroom to Chan and exhibited a purported tenancy agreement he had signed with him, dated 5 May 2015, as well as three formal letters or notices addressed to Chan at the premises.  He claimed that, despite keeping a spare key to the bedroom, he had no knowledge of the items kept inside.  He had told the police about Chan and had tried to contact him through his wife on the night of his arrest, but in vain.

17.  As for the admissions, the appellant claimed that the police threatened to hit him and to arrest his wife and daughter, but promised not to execute such arrests as long as the appellant cooperated and assumed responsibility for the drugs in the bedroom.  The appellant at the time was tired and drowsy, having taken some sleeping pills and alcohol before his arrest.  Coupled with the various threats and inducements uttered, he said he signed on the documents and appended his declaration as directed involuntarily[5].

The reference to MFI-3

18.  MFI-3 was first referred to during the evidence of PC 11782 (“PW5”), although the physical statement was never at any stage placed before the jury.  Mr Cheung, who was also defence counsel at trial, had requested prosecuting counsel to tender PW5 for cross-examination so that he could question him about the circumstances surrounding the taking of MFI-3, it being the appellant’s case that DW2, whom he was proposing to call as a defence witness, had been asked to sign a statement she had never made or read, or been permitted to read, implicating her father.  Prosecuting counsel obligingly tendered PW5 for cross-examination. 

19.  We think that the origins of what happened thereafter may be traced to this decision by prosecuting counsel because, of course, it was no part of the prosecution case to call PW5 or DW2, neither of whom were listed as witnesses on the back of the indictment, or to elicit, or rely on, the contents of MFI-3.  There may have come a time, depending on how the issue emerged or developed, whether by way of cross-examination by defence counsel or during the defence case, when prosecuting counsel might have sought to call PW5 either as part of the prosecution case or in rebuttal, but we cannot see that the prosecution was required to tender a witness it was not relying on in order to deal with the taking of a witness statement from a third party who was not, and was never intended to be, a prosecution witness; and who may not ultimately have been called as a defence witness.  Often when evidence is adduced in an unusual, irregular or impermissible way, the court and parties are caught unaware and the consequences can be unexpected.  

20.  During the course of PW5’s evidence, Mr Cheung chose to reveal to the jury the relevant contents of MFI-3.  However, the statement itself was not shown to the jury nor adduced as an exhibit; although it was marked for identification purposes. 

21.  The contents of this statement were later to be repeated during the examination-in-chief of DW2, who was called by the defence following the evidence of the appellant during the defence case.  DW2 confirmed in chief that she had signed the witness statement[6], without reading it[7], having been told by a police officer that she would not need to attend the police station if she signed the document[8]. She was also told that the signing of the document was necessary to confirm that a house search had been conducted[9]. Mr Cheung then asked his witness whether she had ever told the police that only her father (the appellant)  slept alone in the bedroom[10], that only he had a key to the bedroom[11], and that he always locked the door when he entered or left the bedroom[12], all of which statements were contained in MFI-3 and were, of course, highly prejudicial to the appellant.  To each of these questions, the witness answered in the negative.

22.  The witness was made to confirm what was written in MFI-3 when she was cross-examined by prosecuting counsel; in particular, that she and her mother slept in the same bedroom, while the appellant slept alone in the bedroom on the 1^st floor[13]; that she had never been into the bedroom and only her father had a key to the room[14]; and that he would usually lock the bedroom whenever he went in or out of the room[15]. These were rather devastating answers and, of course, prosecuting counsel was perfectly entitled to ask the questions which elicited them in order to impugn DW2’s credibility.  To all of these questions, the witness repeated that she had not told the police the information[16]. Prosecuting counsel also obtained confirmation from the witness that certain other rather innocuous information contained in MFI-3, such as the nature of her employment, was true, although she explained that the police officers must have gleaned this information when chatting with her mother[17].

23.  Whilst, as we have said, prosecuting counsel was perfectly entitled to ask these questions of the witness in cross-examination in order to establish a prior inconsistent statement, the question arises as to why defence counsel sought to ask her about the contents of MFI-3 in evidence‑in-chief; and, for that matter, why he had earlier asked PW5 about the contents of the statement in cross-examination.  If his purpose was simply to pre-empt the prosecution from asking the witness what she had said in a prior inconsistent witness statement, so as to take the wind out of prosecuting counsel’s sails in cross-examination, then he would have had to do so, as a matter of principle and procedure, without asking leading questions of, or cross-examining or impeaching, his own witness.  Moreover, he would have had to be cognizant of his duty not to elicit answers which were self-serving or sought to bolster her own credibility.

24.  In his Chapter on the Rules of Trial in relation to examination-in-chief in South African Law of Evidence (1970)  2^nd Ed, L H Hoffmann (now Lord Hoffmann NPJ)  neatly explained[18]:

“At common law a witness’s previous statements cannot be evidence relevant to the issue, because the hearsay rule prevents them from being used to prove the truth of their contents. They may, however, be relevant to the witness’s credibility, because in the absence of an explanation, the fact that he has previously made a statement inconsistent with his present testimony must weaken his credit, whichever version is the more likely to be true.”

25.  The hearsay rule was succinctly explained by McHugh NPJ, giving the judgment of the Court of Final Appeal in Oei Henky Wiryo v HKSAR (No 2)[19], who held[20]:

“…a reasonable working definition of the hearsay rule is that an oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”

Thus, and in accordance with the above statements of principle, Bokhary and Chan PJJ, in their joint judgment of the same Court in A v Commissioner of Independent Commission Against Corruption[21], said of prior inconsistent statements[22]:

“The position at common law is that in criminal proceedings any inconsistency in a witness’s previous statement goes only to the witness’s reliability and a previous inconsistent statement cannot be treated as evidence of the truth of its contents.”

26.  However, it seems that defence counsel’s primary purpose was not to shore up his witness in advance of her giving evidence by undermining her previous inconsistent statement.  His case was that the appellant was the victim of a “set up”; that no drugs were found on him outside the house; that he was not in possession of a key to the bedroom; and that he had made no admissions of either possession of the key, or possession or knowledge of the drugs on his person or in the bedroom.  Pursuant to those instructions, in particular in relation to the issues of admissibility and the weight of the admissions, the defence alleged that the appellant was threatened and induced by the police into admitting responsibility for the drugs found in the bedroom so that his wife and daughter would not be arrested and taken to the police station.  Mr Cheung articulated this position in his closing address to the jury[23]:

“Can you be satisfied or you are not sure, or in fact there is an element of truth from those undisputed facts that the family members were in fact not disturbed? That’s described by this defendant, he struck a deal with the police and the police kept to that promise, ‘You sign on my notebook then you (the appellant’s wife and daughter)  will be left alone’, and they were in fact left alone.

Or even the statement taken from (DW2)  went as far as to put the blame on him.  ‘I didn’t know my father had this habit.  All along he locked up the room.’  Could it be part and parcel of that compromise so that he took up all the blame and therefore the family members were not taken back for inquiry…?”

27.  That, as Mr Cheung has explained to us, was principally why he put the contents of MFI-3 to DW2, and why he wished to put a case of concoction to PW5, who had taken the statement.  We think defence counsel was entitled to do as he did, although it was a rather bold and dangerous line to take for it allowed the jury to hear at an early stage the very damaging contents of MFI-3, which PW5 confirmed were in the statement, although DW2 was later to testify she had never said them.  In those circumstances what was contained in the statement was not, and could not be, evidence against the appellant, although it certainly went to the issue of DW2’s credibility.  Therein lay the danger of defence counsel’s approach and why the jury needed to be told how they were, and more particularly how they were not, to treat the contents of MFI-3.

28.  When prosecuting counsel addressed the jury at the close of the case, he made the point that the appellant had signed several post-records of what he had allegedly said both outside and inside the house[24]:

“Now, it’s not just the one document. The defendant’s signature on the series of post-records as they went into and were in the house that the defence are saying was improperly obtained. There is also, as you haven’t seen but have heard all about, the daughter’s document. She has told you what is in that document.”

The conflating of the post-records with MFI-3 by prosecuting counsel was unfortunate, for it gave the impression that the contents of all of the documents were adverse to the appellant, without making clear that what was contained in MFI-3 was not, and could never be, evidence against him.

29.  Prosecuting counsel then went on, almost immediately, to criticise the evidence of DW2 in relation to her claims of how she came to sign MFI-3[25]:

“You would in circumstances where you were aware, I suggest, of the seriousness of the situation check even at 17 years old a document that was there on the table, in front of you, with writing you could read, you would make sure, as she appears to have done, that it didn’t incriminate you in any way let alone anyone else in the house. But on that occasion she signed the document to say that room upstairs was her dad’s room, ‘But I never read that so I never saw that.’”

Although prosecuting counsel’s point was that DW2 was not telling the truth when she signed the document, he again saw fit to recite the damning statement in MFI-3 that the bedroom in question was exclusively occupied by the appellant.  And, although what was said in MFI-3 about her father’s occupation of the bedroom was contrary to her evidence that it had been sublet to Chan, and was admissible for the purpose of exposing this contradiction, the jury were never told how they must deal with this evidence.

30.  It is accepted by the respondent that the jury were not directed in accordance with Specimen Direction 27, which applies to all witnesses who have given previous inconsistent statements but have not been treated as hostile, the nub of which is:

“You may take into account the fact that he (or she)  did make a statement when you consider whether he (or she)  is believable as a witness. However, the statement itself is not evidence of the truth of its contents, except for those parts of it which he (or she)  has told you are true.” (Emphasis supplied)

31.  Mr Cheung further accepted before us that he had not asked the judge to give such a direction.  Moreover, to be fair to the judge, the matter had emerged in an unconventional and unexpected way during the cross-examination of PW5, while the point as it is now presented only achieves real significance in the wake of the verdicts.  Had the jury convicted the appellant on both Count 1 and Count 2, there could be no real substance to the submission that the jury had disbelieved the police and rejected the post-recorded admissions.  But, having acquitted the appellant on Count 1, where the evidence relied solely on what the police alleged they had found on the appellant and what they claimed he said about his possession of the drugs in Count 1, it becomes much more difficult to say that the jury must have relied upon the admissions in respect of the drugs in the bedroom in Count 2.  For, if the jury did not accept the 1^st admission as to the appellant’s possession of the drugs, we do not believe we can assume they must necessarily have accepted the 3^rd and 4^th admissions as to the possession of the drugs inside the bedroom and his sole possession of the key to that room.

32.  And if one puts out of mind the evidence of possession of the drugs in Count 1 and, perhaps also, the admissions in relation to the key to the bedroom and the drugs found inside, then what was left from which to draw an inference of guilt was the appellant’s position as head of the household where a significant amount of drugs were found in a locked bedroom.  If the jury rejected the appellant’s evidence of the occupation of the bedroom by Chan, that rejection of his evidence might have supported the inference the prosecution wished the jury to draw, even though it did not provide substantive evidence of his possession and knowledge of the drugs in the bedroom. 

33.  It is against this background that the statements in MFI-3 achieve a particular significance, for DW2 is recorded as telling the police (which she, of course, denied)  that the bedroom was under the exclusive control and use of the appellant, who had the only key.  However, having testified that she never made these statements in MFI-3, they could not provide evidence against the appellant.

34.  Ms Claudia Ko, for the respondent, has mounted an able and considered response to the appellant’s complaint, pointing out that nowhere did the judge actually invite the jury to place any weight on the contents of MFI-3; nor did she suggest that such contents were a permissible source of evidence from which an adverse inference might be drawn.  That is true.  However, the mischief lies not in directing what the jury could do with the contents of MFI-3, but in failing to direct what they could not do. The problem is accentuated by the verdicts, suggesting that the jury did not believe much, if any, of the police evidence.

35.  In these circumstances, and in particular because of their disparate verdicts, we consider that the jury had to be warned that whatever DW2 did not accept she had said in MFI-3 could not be evidence against the appellant, and could never be used other than for the very limited purpose of assessing the credibility of her own testimony.

36.  Accordingly, we find that the absence of such a warning or direction was, in this case, a material irregularity.  Moreover, in the circumstances postulated by the rejection of the police evidence, we did not think it appropriate to apply the proviso to section 83(1)  of the Criminal Procedure Ordinance, Cap 221.  However, had the jury convicted on Count 1 in conjunction with Count 2, we would have had less diffidence in applying the proviso because the admissible evidence against the appellant would have been overwhelming and the conviction inevitable: physical possession of dangerous drugs; physical and exclusive possession of the key to the bedroom in which a significant quantity of other dangerous drugs were found; an admission to possession of the drugs on his person and an admission to possession of all of the drugs and paraphernalia in the bedroom; all in the context of his position as head of the household where a significant quantity and value of drugs were being stored.  Furthermore, the jury would have rejected the appellant’s assertion that the drugs in Count 1 were for his own consumption, and his evidence that the drugs in Count 2 belonged to Chan.  However, in light of the jury’s acquittal on Count 1, we cannot go that far.  

37.  It was for these reasons that we allowed the appeal against conviction and set aside the sentence.

Retrial

38.  Ms Ko did not apply for a retrial.  In the circumstances, we think she was right.  This was the second successful appeal by the appellant, following two jury trials and two convictions, as a result of which he has now served a continuous period in custody of some 7 years and 11 months’ imprisonment.  The sentence passed upon him in the present case was 15 years and 3 months’ imprisonment, for which we were informed his earliest expected date of discharge, with good behaviour, would be 10 December 2025.  Finally, although this factor is in no way conclusive, it is to be noted that the respective juries at both trials had each convicted the appellant on Count 2 by 5:2 majorities.