HKSAR v. TAM CHU KWONG

[ENGLISH TRANSLATION – 英譯本]
CACC 30/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 30 OF 2016

(ON APPEAL FROM HCCC NO 134 OF 2015)

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JUDGMENT

Hon D Pang JA (giving the judgment of the Court):

1.   This case was originally heard in the Court of First Instance of the High Court where the applicant was convicted after trial of one count of “trafficking in a dangerous drug”, namely ketamine, with a net narcotic weight of 3.15 kilograms and was sentenced to 22 years’ imprisonment[1] by the trial judge (Maggie Poon J).  The applicant sought leave from this Court to appeal against his conviction.

Facts

2.   At 4:52 pm on 26 October 2014, the applicant departed from Hong Kong through Lok Ma Chau Spur Line checkpoint and entered the mainland.  At 8:28 pm the same day, he returned to Hong Kong through Shenzhen Bay checkpoint instead by taking a 7 passenger vehicle driven by a cross-border vehicle driver, Mr Leung [PW1[2]]. During the time, Customs Officers [PW2 to 5] intercepted the 7 passenger vehicle for a search upon which a knapsack with 12 plastic bags inside containing the ketamine in question was found on the seats in the middle row.  The retail price of the batch of dangerous drugs was around HKD 520,000 at the material time.

The Prosecution Case

Evidence of the driver Mr Leung

3.   The evidence of PW1 can be summarised as follows:

4.   At some time after 7 o’clock on the night of the incident, PW1 received a phone call from a fellow driver asking him to take an additional “order” doing a trip from Shenzhen to Yuen Long.  As a result, PW1 made contact with an unknown mainland driver and arranged to pick up passengers at Lianhe Plaza in Huanggang Port.  As regards the particulars of the picking up, the trial judge recited his evidence in her “summing up”[3] as follows [the emphasis is on the applicant boarding the vehicle from the right and the other man placed the knapsack on the seats of the middle row also on the right]:

‘He said that the traffic was very congested when he arrived there. He stopped his vehicle in the middle of the road because he saw that the mainland driver was already waving his hands. At that time, the opposite party’s driver told him to go to Yuen Long Centre first. He therefore alighted from his vehicle. What did he do first? He slid open the door on the right, that is the passenger sliding door because he was alighting from the right. Only when he was about to open the boot for putting luggage did he realise there was no suitcase. He then asked, “Oh, have you not any luggage?” He further said that at that time one of the two men, namely the one who was carrying the knapsack, replied, “no luggage”. After the reply had been given, the defendant boarded his vehicle from the right and sat in the row behind the driver seat, that is in the middle of what we call the “middle row”. The man who was carrying the knapsack only placed the knapsack on the floor of the middle row behind the driver seat subsequently. Mr Leung said he thought both two men would board his vehicle but the mainland driver said the other man was not returning to Hong Kong. As soon as he heard that, he boarded his vehicle, closed the door and pulled off. This was the account given by the driver of his picking up the defendant at that time and how the knapsack was placed in the vehicle.’

5.   PW1 further said that the applicant’s mobile phone had rung twice during the journey.  On the first occasion, the applicant only passed the phone to PW1 after he had talked to the caller for one to two minutes.  The caller asked PW1 if he knew the way to Yuen Long Centre [PW1 answered in the positive].  On the second occasion, the applicant did not say anything after he had answered the call but instead passed the phone to PW1 right away for PW1 to confirm with the caller the vehicle registration mark of the 7 passenger vehicle and the estimated arrival time.  PW1 pointed out that it was the same caller on both occasions.

6.   PW1 said the applicant did not say much during the journey except that he had borrowed a pen from him.

7.   PW1 said it only took 4, 5 minutes for them to go through the mainland checkpoint because they were not subjected to random check.  As regards entering Hong Kong, the situation was like what was described in the “summing up” [the emphasis was the applicant’s claim that there was nothing to declare before the vehicle search was announced and the knapsack was already moved to the left of the middle row when it was found]:

“Having reached the Customs booth, the Customs Officers asked them whether there was anything to declare. What did PW1 say about the situation at that time? PW1 said he turned his head to ask the defendant who answered in the negative. He therefore said in reply to the Customs Officer “nothing to declare”. But the Customs Officer requested that, ‘well, please drive forward for inspection.” Under the circumstances, he had to drive his vehicle forward for inspection. During the inspection, both the driver and the defendant had alighted from the vehicle. The driver said he saw the defendant acted in an unusual way in that he was handing the like of a piece of paper to a sturdier Customs Officer. But he said that the Customs Officer folded his arms and did not really pay attention to the defendant. He said he felt that the Customs Officer had not taken the paper. After a while, PW1, that is Mr Leung, heard the Woman Customs Officer, who was on the left of the vehicle, ask to whom did the bag belong, i.e., the knapsack. At that time, he saw that the knapsack was on the left in the middle row of the vehicle instead of on the right of the floor in the middle row which was what he had said originally. He said it was on the left. But he was also very honest with you all in saying that he did not recall whether it was on the left of the seat or on the left of the floor of the vehicle at that time. In any event, it was no longer on the right but was on the left instead. He said the defendant reacted very strongly at that stage and said that the knapsack was not his. The driver was then taken to another room of the duty booth by the Customs Officers for making enquiries, arrest and administering caution. He said he realised at that stage that he was suspected to have connection with the stuff which was found upon search in the knapsack and started feeling the gravity of the matter.”

8.   Under cross-examination, PW1 added that he did not see the circumstances under which the applicant and the other man alighted from the vehicle which was driven by the mainland driver.  He said, ‘he only saw the defendant and the man walk from the mainland vehicle to his vehicle.  It was a very short duration of about one minute only.  He did not hear what was said between them’.  PW1 said, ‘he disagreed with the defence’s suggestion that the left door of his vehicle was also completely opened when the defendant boarded his vehicle.  He was absolutely certain that he had only opened the right door of the vehicle when he let passengers board or alight from his vehicle.  He explained that the vehicle was stopped in the middle of the road at that time to let passengers get on board.  Therefore, he would not open the left vehicle door to let passengers get on board his vehicle.  He also disagreed with the defence’s suggestion that the other man put the knapsack in the middle row near the left door.  He was absolutely certain that the left vehicle door was never opened. The other man put the knapsack on the right of the floor in the middle row.

Evidence of the Customs Officers at the scene

9.   PW2 was the Customs Officer who made the decision to intercept the 7 passenger vehicle for inspection.  At the material time, he was on duty in a booth which was located on the right of the passageway.

10.   PW2 said: 1. he had asked PW1 and the applicant whether they had anything to declare and they both answered in the negative; 2. because the applicant not only appeared to be evasive but he also took the passageway which was usually used by passport holders only when he himself was a Hong Kong Identity Card holder, PW2 was therefore suspicious about the 7 passenger vehicle in question; 3. since the duty booth he was in was higher than the 7 passenger vehicle, he could therefore see clearly the knapsack in question was placed to the left of the applicant.  Point number 1 above completely tallies with what was said by PW1. It was stated in the “admitted facts” that it was 8:28 pm at that time.

11.   PW3 to PW5 were the Customs Officers who had direct participation in the vehicle search.  The following is the gist of their evidence.

12.   Since PW3 did not find anything in the boot of the vehicle, he went halfway down to the left of the vehicle.  It was at this time when the applicant, who had alighted from the vehicle much earlier, walked next to PW5, who was responsible for surveillance, and handed a piece of paper the same size of a name card to PW5.  Without expecting it to happen, PW5 could only see the word ‘brother’ at the corner of the paper.  Without seeing the rest clearly, PW5 returned the paper and said to the applicant ‘give it to me after the Customs and Excise has finished with its business’.  The applicant took back the paper and did not say anything further.  In the end, PW3 found the knapsack in question on the middle row seats.  After the knapsack was opened, a number of packets of white powder was found at the bottom of the knapsack.  PW4 then asked to whom did the knapsack belong.  PW1 did not say anything initially but after the applicant had claimed ‘it has nothing to do with me, the knapsack’s not mine’, PW1 also indicated that the knapsack ‘was put in the vehicle by the other man’.

Cautioned statement and the incoming calls

13.   Since the result of the ion test conducted on the surface of the knapsack was positive, PW3 arrested the applicant right at the scene.  Under caution, the applicant reiterated that the knapsack in question did not belong to him.  In the part of question and answer, he further made the following explanations: he entered the mainland at some time after 3 pm on that day for the purpose of getting a massage.  When he returned to Hong Kong, he was travelling in a vehicle departing from Futian. On board the same vehicle was his friend ‘Baldie’ and an unknown man.  During the journey, the driver indicated that he had to wait for someone and told them to take the 7 passenger vehicle in question instead.  Hence, the applicant boarded that vehicle.  The 7 passenger vehicle he had boarded was going to Yuen Long West Rail Station.  The knapsack in question should be ‘Baldie’s’. Eventually, the applicant agreed to assist the Customs and Excise in conducting a ‘controlled delivery’ of the knapsack to Yuen Long.  The above contents can be seen in the post-recorded cautioned statement [prosecution exhibit P44] which was not disputed by the defence.

14.   Upon the conclusion of the abovementioned first enquiry, the applicant was taken to a room for body search.  During the time, the applicant indicated that the paper he had earlier intended to give PW5 was missing.  But it was not recovered even after PW4 and PW5 had searched the entire room all over.  When a detailed inspection was conducted on the knapsack, Customs Officers found that a fruit knife was concealed therein.  After running a quick test, the white powder in question was confirmed to be the dangerous drug ketamine.

15.   In order to conduct the abovementioned ‘controlled delivery’, PW5 had subsequently coached the applicant to give the ‘standard answer’ when answering phone calls, that being, ‘in the course of customs clearance, is now getting the formalities done at Customs and Excise, will call you once it is done’.  As a matter of fact, in the evidence of another Customs Officer [PW6], there was a total of 3 calls made to the applicant’s phone under his surveillance.  The time was after 10 pm on the same day.  Specific description about the relevant situation in the “summing up” is as follows:

“The defendant’s phone rang at 22:50, 22:55 and 22:58 respectively. PW6 said he noticed that the first call and the second call had the same caller number, but the caller number for the third call was different. He could not hear what the caller had said but he could hear the defendant give the standard answer on the first occasion ... When the phone rang for the second time, the defendant was still giving the standard answer…. PW6 further said that he had asked the defendant who the opposite party was after the second call and the opposite party said he was brother. However, when he further asked “what it meant by ‘brother’, ‘was it biological brother?’” The defendant made no reply. Now, it was a little different on the third occasion. When the phone rang for the third time, the defendant said to the caller ‘going through customs clearance, having the formalities done, Yuen Long West Rail Station.’ He added this sentence “Yuen Long West Rail Station”. After he had hung up, PW6 asked “Who was it?” The defendant said, “I don’t know him, I don’t know who he is.” PW6 then said, “if you don’t know him, why said so much to him?” The defendant made no reply.”

16.   The “controlled delivery” mentioned in the above did not actually happen.  On the contrary, right after the abovementioned third incoming call [the time was 11.06], PW4 made a post-record and enquiries of the applicant as mentioned in the above paragraph 14.  This procedure was concluded at 1:04 am in the small hours of the next day [the 27^th day].  However, 36 minutes [1.40 am] later, the applicant once again indicated that he had something to add [hereinafter ‘1^st addition’].  He said, ‘a small slip of paper had been given to the Senior Customs Officer during the vehicle search…, wanted to report that there might be contraband on board the vehicle, wanted to make a report to the police’.  As regards how the Customs Officer reacted and where did the paper go, the applicant claimed that ‘(the Senior Customs Officer) returned it to me, saying that follow up action would be taken after the vehicle search was done’, but the paper ‘cannot be found’ now.

17.   The applicant made his “2^nd addition” at 9:15 am on the 27^th day after Customs Officers had conducted a search in his residence.  The gist of his addition is as follows: it was right after the Customs Officer had requested the applicant to alight from the vehicle that the applicant made a report to the Customs Officer; the paper he handed to the Customs Officer was written ‘I suspected that there is contraband in the vehicle, request to make a report to the police, brother’; the Customs Officer indicated that he could only read two phrases ‘make a report to the police’ and ‘brother’.  Besides, vehicle inspection had to be dealt with first; the Customs Officer had not returned the paper after saying those words; having been taken inside a room for a search and enquiry, the Customs Officer asked to whom did the knapsack belong; the applicant once again raised the issue of his intention to make a report earlier.  But the Customs Officer denied having received the paper nor having failed to return it to the applicant.  In conclusion, in respect of this issue of who was the last person in possession of the paper in question which had gone missing, the applicant gave different accounts in his two additions.  As regards when did the applicant hand the paper to the Customs Officer, the applicant’s version was also different from the Customs Officer’s. [see paragraph 12 above]

Cautioned video-recorded interview

18.   In respect of this case, there was only one video-recorded interview which was conducted at 1:06 am in the small hours of the 28^th day, that is, almost 2 days after the applicant was arrested.  Voluntariness was not in dispute.  The following is the gist of the statement made by the applicant [in particular details which he had not mentioned previously]: it was about 3 pm when he departed from Hong Kong and entered Futian; after he had his massage done at 6 pm, he went to a restaurant for tea, while he was having tea, he met ‘Baldie’ whom he had known for a few months only; he and ‘Baldie’ left the restaurant together; the applicant intended to return to Hong Kong from Futian, during the time, he encountered runners selling trips （「蛇仔sell車」in original）that ‘goes directly to Hong Kong, without the need to go through Customs’; having settled on the price [$350 a person], he boarded the vehicle with ‘Baldie’; ‘Baldie’ was already carrying the knapsack when he boarded the vehicle; he did not know whereabouts in Hong Kong ‘Baldie’ was going; since the driver had indicated that the vehicle would go to Yuen Long first, the applicant made it clear that there could be a stop for alighting at ‘West Rail Station’; since he lives in Tsuen Wan, he could reach home very quickly by taking the West Rail in Yuen Long; during the journey, the applicant was dissatisfied with the driver stopping the vehicle to wait for passengers; the driver therefore stopped the 7 passenger vehicle in question for them to have ‘vehicle transfer’ ; during the ‘vehicle transfer’, it was ‘Baldie’ who alighted first; because ‘Baldie’ had thrown the knapsack into the 7 passenger vehicle, the applicant thought that ‘Baldie’ would board the vehicle; he did not seek clarification because he had ‘no authority to ask’; he only found out ‘Baldie’ had not boarded the vehicle until after the vehicle had set off; situation such as this happened because the applicant was so exhausted that he did not pay attention to things that happened in the surroundings.

19.   The applicant went on to say that : actually, he only realised ‘Baldie’ had not boarded the vehicle the moment he called; and it was at that same moment that he first noticed the knapsack of ‘Baldie’ was by his side; since ‘Baldie’ changed his phone number frequently, it could be said that he did not have ‘Baldie’’s phone number; while he was in the vehicle, ‘Baldie’ called twice and requested to speak to the driver directly on both occasions; He only heard the driver tell ‘Baldie’ his vehicle registration mark; he had not pursued to ask about the conversation between the driver and ‘Baldie’ because it was someone else’s business; he started to feel ‘unusual’ when ‘Baldie’ called the second time; When the vehicle was approaching Shenzhen Bay, he had a deeper feeling of ‘something was not quite right’ ; since ‘Baldie’ had not boarded the vehicle, he suspected that there was contraband inside the knapsack; he had not opened nor touched the knapsack except that he had asked the driver ‘is there any phone signal for calling back to Hong Kong after crossing the China checkpoint’  ; he had also asked the driver to lend him a pen to write on a paper requesting the Customs Officer to make a report to the police; because the customs clearance at the China side was done very quick, he did not have the time to make a local report there; the first instance he was in Hong Kong, he submitted the paper to the Customs Officer who was conducting the vehicle inspection; he did not make a report first to the Customs Officer at his duty booth because the Officer let his vehicle  approach the vehicle inspection area soon after he had asked them whether they had any luggage; since the handwriting was illegible, the Customs Officer could only read a few words which were written by the applicant and had not returned the paper in question to the applicant after reading it; the Customs Officer found the knapsack in the middle row near the left door of the 7 passenger vehicle. 

20.   Lastly, the applicant added : before borrowing the pen, he had asked the 7 passenger vehicle driver ‘do we have phone signal to call back Hong Kong yet’, the driver said in reply that it depended on the quality of the phone; the applicant pressed triple 9 on his own phone but there was no dialling signal after a long lapse of time; under the circumstances, the applicant had no alternative but made a report by writing it on a paper; the applicant claimed that he had done what a good citizen should do.

Other Evidence

21.   As revealed in the undisputed immigration movement record, the applicant actually entered mainland China at 4:52 pm on the day of the incident instead of sometime after 3 o’clock as he had claimed.

22.   Forensic officers had examined the knife and the plastic bags which were used for the dangerous drugs packaging inside the knapsack. They did not find any fingerprints with forensic value.

The Defence Case

23.   The applicant elected to testify. He adopted all his statements made under caution and made additions. He also provided all sorts of explanations under cross-examination. For instance, he said: he actually did not know who put the knapsack in the vehicle. When he boarded the vehicle, he already saw the knapsack on the left of the carpet in the middle row; he had asked the driver to whom did the knapsack belong but the driver replied that it was a passenger who had brought it on board the vehicle; he did not make a report verbally but chose to submit a paper instead because he thought that writing it down would be clearer; he wrote the word “brother” on the paper because it was his habit to address his senior as brother.

The Present Appeal

24.   Mr Yuen, counsel representing the defence since the original trial put forward two specific grounds of appeal on behalf of the applicant. The third one was a general ground of appeal saying that the conviction in the case was unsafe and unsatisfactory. The following are the first two grounds of appeal[4] :

(1) In her “summing up” to the jury, the trial judge was biased as it amounted to making a second closing speech for the Prosecution. The applicant has not been accorded a fair trial. 

(2) The Prosecution did not have sufficient evidence to prove the applicant knew that the contents inside the knapsack were dangerous drugs rather than other contrabands. But the trial judge simply ignored the issue and made a one-way refutation of the course of events as suggested by the defence in her “summing up” to the jury hence misguiding the jury to the wrong focus.

Discussion

The Relevant Law

25.   The law relevant to the first ground of appeal is well established. The following principles can be summarised in the light of those authorities.  In terms of contents, these principles are repetitive to a certain extent yet they are of ample assistance to the analysis of this case because their perspectives and emphasis on important issues differ. 

•   However flimsy and incredible the defence case may be, the defendant is nevertheless entitled to a fair trial.  For such entitlement to be seen in a trial before a judge and a jury, the judge’s summing up must be unbiased and without influencing the jury in making their own independent judgment on factual issues [HKSAR v Hong Tsz Yin [2011] 5 HKLRD 447, paragraph 63 of the judgment; HKSAR v Zhu Jinni [2012] 4 HKLRD 444, paragraph 40 of the judgment]

•   A judge is entitled to express his views on factual issues in his summing up including those of the defence case provided that they are presented in a restrained manner and not so vigorous as to give an impression that he is instructing the jury to accept his personal views. Also, a “summing up” should not give an impression that it was another closing speech for the Prosecution [HKSAR v Zhu Jinni [2012] 4 HKLRD 444, paragraph 30 of the judgment,and HKSAR v Yeung Chor Ming 楊楚明[2004]1 HKLRD 136 as cited in paragraph 39 of the judgment)

•   No defendant has the right to demand the judge to conceal in his “summing up” the weaknesses and deficiencies of the defence case. However, if the comments made by the judge are so weighted against the defence case, the jury would be left with little real choice other than to comply with the judge’s views [HKSAR v Hong Tsz Yin [2011] 5 HKLRD 447, paragraph 71 of the judgmentand the judgment of the Privy Council in Mears v R (1993) 97 Cr. App. R. 239 as cited in paragraph 72 of the judgment)

•   What the judge says to the jury carries more weight than what counsel says in a closing address and the judge’s “summing up” is the last word the jury hear before they retire.  As such, the judge must be very careful in making comments on the defence case. [Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52, paragraphs 24 and 26 of the judgment]

•   Ultimately, whether a “summing up”, when read as a whole, is balanced is a matter of impression and feel.  [HKSAR v Umali [2011] 3 HKLRD 55, paragraph 14(e) of the judgment; HKSAR v Hong Tsz Yin [2011] 5 HKLRD 477, paragraph 66 of the judgment]

•   A “summing-up” which is unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.  [HKSAR v Umali [2011] 3 HKLRD 55, paragraph 14(d) of the judgment;

Criticisms of the “Summing Up”

26.   This is not a complex case. The whole “summing-up” consists of only 15 pages of which 4 pages are about the prosecution witnesses covering what were seen and heard[5] by all prosecution witnesses, the preparation work for the ‘controlled delivery’ and the applicant’s verbal cautioned statement and the two additions (see paragraphs 15 to 18 above). As regards the defence case, the trial judge dealt with it in another 4 ½ pages.  In addition to some general directions, the “summing up” is basically completed[6]. The applicant is now complaining about this 4 ½ pages “summing up” [ page 20K to page 24T of the appeal bundle].

27.   One of the reason the trial judge has spent more time on the defence case was because the applicant, other than adopting his cautioned video-recorded interview as evidence, had also made additions of all sorts of explanations and clarifications in the witness box including those arising out of cross-examination. As a matter of fact, had the trial judge not adopted the alternative procedure by dealing with the video-recorded interview of the applicant and the evidence given during examination-in-chief and cross-examination at one go, the defence case might occupy an even larger part of her “summing up”. The key issue is whether the trial judge had fallen into error in the course of her dealing with the evidence which was beyond the limits permitted by established authorities.

28.   Contrary to counsel Mr Yuen’s assertion, this Court does not form the view that the trial judge was prejudiced against the applicant right from the very outset of her summing up [ page 20K of the appeal bundle]. If what the trial judge had said in this part was prejudicial to the applicant, or even extremely prejudicial, it was only because she was reciting the applicant’s evidence when his evidence was contradictory and incredible. The following are two such instances which can be found respectively at page 21E to I and page 21Q to U of the appeal bundle:

‘In his video-recorded interview, he said that he only felt something was wrong [counter 149] when “Baldie” called him on the second occasion and asked to speak to the driver. But he said he did not ask the driver to whom the piece of luggage belong because he had seen “Baldie” carrying that luggage when he alighted from the vehicle for vehicle transfer [counter 164 to 169], he was therefore certain that the luggage belonged to “Baldie”. However, under cross-examination, he said, “Oh, actually I had asked the driver whose luggage was it before I borrowed the pen. The driver said it was a passenger who had brought it on board the vehicle.” In this respect, you will recall it was only under cross-examination that he said this for the first time. He had neither mentioned it during the video-recorded interview nor was it put to Mr Leung when Mr Leung was cross-examined. Mr Leung testified in his evidence that the defendant had absolutely not mentioned anything about the knapsack in the vehicle during the journey.’

‘In the words of Mr Chan in his submissions today, why took the hard way by writing it on a paper when there was an easier way instead by directly telling the China border personnel, the Hong Kong Immigration personnel or Customs Officer verbally? The defendant explained that he simply wanted to tell the Customs Officer that a knapsack was left behind in the vehicle by a passenger. However, when the prosecutor pointed it out to him that in his video-recorded interview, he did not simply say he wanted to ask the Customs Officer to deal with the knapsack which was left behind by a passenger. What he said was he suspected that there was contraband in his vehicle and requested the Customs Officer to “make a report to the police”, “brother”. He then said in reply that his education was limited. He did not know how to express himself. Then the prosecutor asked him, “in that case, there was no need to write it on a paper. Since your education was limited and did not know how to express yourself, simply said it out, why wrote it on a paper?” He then said, “I think it’s clearer to write it on a paper”. The prosecutor further asked, “since you said that it was dark inside the vehicle compartment and you had presbyopia, why wrote it on a paper? Why not said it out?” His answer was still the same “I thought writing it on a paper would make things clearer for the Customs Officer.”

29.   The real problem occurs after page 22M of the appeal bundle. By that time, the trial Judge had already dealt with all the salient parts of the applicant’s evidence.  This can be shown in page 22L where the trial judge had mentioned the last few counters of the applicant’s video-recorded interview. In other words, anyone who has heard that part of the “summing up” would have reason to think that the trial judge was making comments on the defence case.  At this stage, what was said by the trial judge and the tone she used mirrored the way she expressed herself when making comments.

30.   The person the trial judge first touched on was this character ‘Baldie’. I call it ‘1^st problematic paragraph’ (page 22M to 23H):

‘members of the jury, this “Baldie” whom the defendant had talked about, according to him, he knew very little about “Baldie”. He did not know the name of “Baldie”, nor his phone number, nor his address. What’s more is that, he has only seen him once previously. Although he said he had tea with “Baldie” and left the restaurant together with him and boarded the first vehicle together with him, it appeared from his evidence, however, that he did not at all seem to care about any business about “Baldie”. He paid no attention to “Baldie” boarding the first vehicle, to where he told the driver he was going. Now, when the driver stopped the vehicle saying that he had to wait for passengers, the defendant said in his evidence that he became a bit impatient after having been waited for almost 20 minutes. He therefore asked the driver “why took so long”. The driver’s answer was waiting for passengers. However, when the prosecutor asked him, “Well, you were getting anxious at that time, what was the attitude of ‘Baldie’ when you put the question to the driver?” “Oh, paid no attention”. After he had transferred vehicle, he still paid no attention to whether “Baldie” had boarded the second vehicle. What he said was he would not concern whether other people were coming or not. He further explained that “I was so exhausted after I had boarded the vehicle that I did not really pay attention” [counter121]. Now, he said when “Baldie” called him for the first time, he said in his evidence that once he answered the call, he said “hello, what’s up?” If “Baldie” was with him just now and “Baldie” had not boarded the vehicle, why did he not say “why, did you not board the vehicle?” Why instead began with “hello, what’s up?” Now, when he noticed, finally, finally noticed that there was a piece of luggage by the side, and when “Baldie” called him for the second time, he said it was “Baldie”, yet he still did not ask “Baldie” “hey, have you left behind a knapsack here?” Ordinary person in their ordinary common sense would have asked “that knapsack, was it you who had left it behind?” It was not asked on both occasions and the phone was passed to the driver to answer on both occasions. When the conversation had ended, he still did not ask the driver like “hey, what did my friend want from you?” In his evidence, he replied “oh, [I] seldom ask people these things”. But what about the driver’s evidence? In his evidence, the driver said the caller in the first phone call had already asked him whether he knew the way to Yuen Long Centre. On the second occasion, the same person asked him what was his vehicle registration mark, when would he arrive?” He was further asked “Why took so long” Well, would you think this caller was this “Baldie” who had not boarded the vehicle in Shenzhen? Whether he was the “Baldie” who had put the knapsack inside the vehicle in Shenzhen? “Baldie” was there, right? “Baldie” saw the vehicle registration mark of the vehicle, right? Was it still necessary for “Baldie” to ask what the vehicle registration mark was? Was the defendant’s evidence reasonable in this regard? Or it was like what the prosecution had said, the evidence of this case as a whole showed that there was obviously a consensus between the defendant and “Baldie” in that the defendant would bring the knapsack together with its contents through the checkpoint back to Hong Kong; and that the defendant was executing this delivery operation? The prosecution also invited you to take into account the considerable value of the dangerous drugs in this case, they were worth as much as 520,000 odd dollars as stated in the facts admitted by both parties. Would anyone leave things of such high value behind so casually in a vehicle? Leaving it behind so casually in a vehicle? Leaving it behind so casually in a vehicle without anyone knowing it?’

31.   The next problem concerns the so-called ‘paper note’ incident and its significance. I call it the ‘2^nd problematic paragraph’ [page 23H to 24J]:

‘Let’s go back to the paper. Only the defendant and PW5 had seen the paper. What was the exact content therein? No one knows. The defendant said he had it written on paper once he became suspicious. He handed it to the Customs Officer when he had reached the Customs and Excise checkpoint and requested to make a report to the police. When was it exactly when he started to get suspicious? In his video-recorded interview, he stated that he felt that something was not right when he was almost at Shenzhen Bay and wondered why the knapsack of “Baldie” would be inside the vehicle. Well, when did he find out “Baldie” had left behind the knapsack without himself boarding the vehicle? At first, the defendant said at the time when he boarded the vehicle, he was so exhausted that he had paid no attention. It was only when the phone rang that he realised “Baldie” had not boarded the vehicle. In that case, why did he not say to “Baldie” on the phone that “hey, is it you who has left behind a knapsack here”. On the contrary, PW1 said in evidence that the defendant together with the other man walked from the mainland vehicle to his vehicle. It was only after the defendant had boarded the vehicle from the right did the man put the knapsack on the right of the floor and subsequently closed the door and set off. Whereas the defendant said he had not paid attention to the position where “Baldie” had left behind the knapsack. He had never touched the knapsack nor opened it. But he later said that the knapsack was on the left of the middle row near the door. Let us see about the position of the knapsack. PW1 said that he definitely had not opened the left door. It was only the right door which was opened. The defendant boarded the vehicle from the right door at the middle row. Only after he had boarded the vehicle did the other man put the knapsack on the right of the floor in the middle row. Then the vehicle started to move and the driver no longer paid attention to the knapsack. The next part goes to the duty booth where PW2 was situated. At that time, he saw that the knapsack was no longer on the right of the floor. The knapsack had been moved onto the left seat, that is to the left of where the defendant was seated, from the right of the floor. When PW3, the Woman Customs Officer was searching the vehicle, she also found the knapsack in that position, that is on the seat to the left of where the defendant was seated. Well, why would the knapsack go from the right to the left of the seats. Certainly, only if you believe the knapsack was originally put on the right of the floor as testified by PW1. But if you believe in this, why would the knapsack go onto the left seat from the right of the floor. It was the prosecution case that the defendant was the only person who could move the knapsack. It was therefore obvious that he had direct custody of the knapsack and control of the knapsack and the contents therein. Well, members of the jury, do you think the defendant had direct control of this knapsack and the contents therein at that time?

Now, the defendant emphasized a good citizen should make a report to the police at the very first instance. Why did he not make a report upon arrival at the China checkpoint? His explanation was the customs procedure was done quickly, but how quickly? Let’s go back to PW1’s evidence, he said it lasted for 4, 5 minutes. PW1 also gave an account of the procedure which required the passenger to produce a home permit by handing it to the Customs Officer while sitting in the vehicle. Members of the jury, was it so quickly that there was not even the opportunity to make a report? Having arrived at the Hong Kong Customs and Excise, the first duty booth they passed by was that of PW2. PW2 did ask whether there was anything to declare. PW1 said he turned his head to ask the defendant whether there was any and the defendant answered in the negative. PW2’s evidence also showed that both the driver and the passenger said there was nothing to declare. Please think about it, members of the jury, since the defendant was already getting suspicious at that stage, irrespective of contrabands or someone had left behind something. Why not made a report at that time? Why waited until the stage when a vehicle search was conducted to “stick” the paper out and handed it to PW5? In addition, why must a paper be used to make a report. Why could it not be made verbally? Why requested to call the police? The prosecutor had also put it to the defendant that the reason why he consented to assist Customs Officers in conducting the controlled delivery to Yuen Long was because he knew it all along that those items (dangerous drugs) were destined to be delivered to Yuen Long. There was also another point, which is, he had categorically revealed it in the third phone call by saying “Yuen Long West Rail Station”. It was exactly this sentence which was not the standard answer PW5 had coached him to say. Why would he say this extra sentence? It was suggested by the prosecution that this sentence showed clearly it was all along arranged for these things to be delivered to Yuen Long West Rail Station. It was also suggested by the prosecution that when he talked about making phone calls, whether there was any phone signal, submitting the paper note, it was only an act of “thief shouting thief” he did to take his chances. He did it deliberately to get himself out, to shirk himself from responsibilities. The paper note was prepared for the so-called reporting when he saw fit. He did this to draw a line between himself and the dangerous drugs so as to save himself and in an attempt to undermine the role he played in the matter.

32. The second next problem concerns the question why did the applicant transfer vehicle to cross the border and allegedly consent to alight from the vehicle in Yuen Long. I call it the ‘3^rd problematic paragraph’ [page 24J to page 24O]:

‘The prosecutor also questioned about what he said in court for the first time that he had a stomach ache that day. He had to close his eyes and rest and he had neither paid attention to whether “Baldie” had boarded the vehicle nor when the knapsack was put in the vehicle and by whom. The prosecution argued that if he was really so uncomfortable, he could have crossed the border directly in Huanggang as he was there at that time. Why took all the trouble to take a cross border vehicle. Furthermore, he was the only person on board the cross border vehicle. If he really had a stomach ache and was so uncomfortable, why did he not tell the driver to take him all the way to his home in Kwai Chung but went along with the arrangements to go to West Rail Station instead? Yuen Long instead? Yuen Long Centre instead? Did it show that arrangements were categorically made in Yuen Long Centre and Yuen Long was the place to carry out the dangerous drugs transaction? At this juncture, the defendant explained that he had mentioned going to Kwai Chung. But the driver said he had to go to Yuen Long first before going to the airport. He did not want to go to and fro. He only said West Rail because he did not want to waste other people’s time.’

33. The last problem concerns the conclusions made in respect of the position of both parties. I call it the ‘4^th problematic paragraph’ [page 24 O to 24 T]:

‘In sum, the defendant was saying: Firstly, the knapsack was not his. He had no control over the knapsack. Nor was he delivering the knapsack to any place. He had absolutely no knowledge of what was inside the knapsack. Once he suspected that there was contraband inside the knapsack, he immediately wrote a paper note with the intention of submitting it to the Customs Officer for making a report to the police. Therefore, he absolutely had no possession because he had no control over the knapsack and no knowledge of what was inside; nor had he any intention of having possession. However, the prosecution argued that considering all the evidence in this case, including the time frame, if he only entered China at some time after four, there would be categorically no time for him to have bone tapping for 2 hours and tea afterwards like he had said. There would be categorically no time for him to do so many things he said he had done. It pointed to only one reasonable inference, namely, he went there exactly to take charge of these dangerous drugs which were arranged to be delivered to Hong Kong. The prosecution also argued that the defendant was so very much particular on details about the paper note being written on board the vehicle, whether it was actually handed to PW5; and so very much concerned about it being mentioned repetitively in the several post-recorded statements and video-recorded interview. It completely showed that he was categorically trying to use the paper note as a cover up and confuse people.’

34. Having heard submissions of both parties and read the above “problematic paragraphs” repeatedly, this Court has the following observations: firstly, the amount of evidence to which the trial judge had made reference was not unsubstantial. Her intention was, however, obvious not merely referring to the evidence. Some of the evidence the trial judge had referred to had been mentioned when the trial judge was dealing with the defence case. One such instance was the evidence given by PW1 to PW4 in respect of when and where the knapsack was put in the vehicle [see ‘2^nd problematic paragraph’]. Secondly, the trial judge, irrespective of her way of expression, be it relatively straight to the point or going around it, only made reference to these evidence to show that the applicant’s version was not credible. It would not be difficult to find instances in this regard in the respective ‘problematic paragraphs’. Thirdly, in those instances where the defence was questioned rather directly, the tone of the trial judge was rather harsh. For instance, the trial judge mentioned ‘ordinary common sense’ and kept asking ‘would anyone be like this?’ [see ‘1^st problematic paragraph’]. In addition, she asked the (jury) to consider if the defendant (so and so), why (this and that). [See ‘2^nd problematic paragraph’]. Having heard these words coming out from the mouth of a transcendent judge, it would hardly leave any choice for the jury not to accept. Fourthly, this Court recognises that the comments made by the trial judge on the defence case was no weaker than the closing speech of the prosecution. It even has a supplementary effect to a certain extent. It would not be not discerned by the jury. Under these circumstances, the jury must have the impression that the trial judge recognised even supported the views of the prosecution. Fifthly, although the trial judge had referred to the argument of the defence eventually in “4^th problematic paragraph’, she recapitulated the prosecution case once again right away and at the same time pointed out that the time the applicant’s claim that he entered the mainland was untruthful. By doing this, she would obviously make the jury think that the prosecution’s stance was more acceptable.

Conclusion

35. In conclusion, this Court appreciates the trial judge’s situation. The applicant’s grounds of defence were weak and the accounts he had given about the course of events were contradictory in many places. If his evidence has to be dealt with as a matter of fact, the weaknesses of the defence would naturally be exposed completely. However, the weaker the defence case, the trial judge, when trying the case in the presence of a jury, must be even more careful and highly restrained. Otherwise, the impartiality of the trial would be easily affected. In the present case, based on the observations in the above paragraph 34, this Court is of the view that the trial judge’s “summing up” has actually fallen beyond the limits permitted by established principles. It leaves an ‘impression and feel’ of being unbalanced and could not be saved even the trial judge had instructed the jury to make their own judgment on factual issues. That being said, since the verdict of this case hinges on the truthfulness or untruthfulness of the applicant’s version and factual issues as such are a matter for the jury, this Court also denies the Respondent’s application for the ‘proviso’. The applicant’s conviction cannot be sustained.

36. Since this case already has a conclusion, the second ground of appeal can be dispensed with.

Decision

37. The applicant’s application to appeal against conviction is granted. Appeal allowed, the conviction and the sentence are both set aside with the case remanded to the Court of First Instance for retrial[7] before another judge in the presence of a jury. In the meantime, the applicant shall be remanded pending the retrial.