HKSAR v. CHOW WING WAI

CACC 107/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2013

(ON APPEAL FROM HCCC NO. 242 OF 2012)

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  The applicant pleaded not guilty to two counts upon an indictment: the first count alleged that on 14 February 2012 at Room B, on the second floor of 368 Reclamation Street he had in his possession 2.7 g of cocaine; and the second count alleged trafficking in dangerous drugs, namely, that on the same day and at the same place he unlawfully trafficked in 108.81 g of methamphetamine hydrochloride (Ice) and 6.17 g of ketamine.

2.  Upon this indictment he was tried before Mdm Justice Poon and a jury and convicted on both counts on 18 March 2013.  He was sentenced to 18 months’ imprisonment on the first count and to 12 years’ imprisonment on the second and those sentences were ordered to run concurrently.

3.  He now seeks leave to appeal conviction.

The prosecution evidence

4.  The prosecution case was that a team of police officers were keeping observation in the area and were particularly interested in the premises in question not least because people appearing to be drug addicts had been seen entering and leaving the premises.  They commenced their observation early on 14 February 2012 and obtained a search warrant in the course of the morning and thereafter, at about 12:10 pm, they reached the second floor.  The applicant is said to have emerged from the unit which was flat B at about 12:30 pm wearing top clothing but beneath the waist he was wearing only underpants and was barefooted.  He was carrying a black plastic garbage bag.  He was stopped and in the bag were two small transparent plastic resealable bags which contained traces of cocaine.

5.  The applicant was then led by the police party into Room B.  Room B consisted of a sitting room as well as a bedroom.  There was a door to the bedroom and a window in a partition wall between the bedroom and the sitting room. In the bedroom was a round table upon which were a number of items including two packets of cocaine in a box, a plastic bottle with a straw, and a lighter.  The cocaine said to have been found on that table formed the subject of the first count.

6.  Also on the table were found packets of methamphetamine hydrochloride and ketamine.  In a wardrobe in the bedroom, according to the prosecution evidence, was a Louis Vuitton paper carrier bag (the LV bag) inside which were further packets of drugs containing methamphetamine hydrochloride.  These drugs – the ice and ketamine found on the table and in the LV bag – form the subject of the second count.

7.  The applicant was thereupon arrested and said that he only consumed cocaine at the premises and had no knowledge as to whom the ice belonged.

8.  The prosecution case was that the applicant resided in Room B.  In support of this assertion, they relied on the evidence that that is what he told the arresting police officer; the circumstances of his coming out of the premises partially dressed; a bunch of four keys found in jeans belonging to the applicant which were lying in the sitting room when the police entered, one of which was a key to the bedroom; a photograph album in the window frame in the partition wall, bearing photographs of the applicant’s young son; and passports and travel documents, albeit expired, belonging to the applicant found in the LV bag.

9.  To invite the inference of trafficking, the prosecution relied upon the fact of a quantity of resealable plastic bags, the electronic scale, a notebook with entries which appeared to be accounting entries; the value of the dangerous drugs seized, in the region of $94,000; and the earlier observation by the police party of people who appeared to be drug addicts going in and out of the second floor that morning.

The defence evidence

10.  The defence case was dramatically different in the sense that it consisted of a denial that the applicant lived in those premises; a denial that he emerged partially dressed, carrying a plastic bag; a denial of the presence of drugs on the round table in the bedroom or of the notebook there; a denial that the LV bag had been in the bedroom; a denial that the applicant’s trousers or indeed any other clothing were found in the premises; a denial, which followed from that, that keys to the premises had been found in the trousers or indeed in the defendant’s actual or constructive possession at all; and a denial that he had told the police that he lived in the premises.  If the defence case was or may have been true, it meant that a host of evidence had been fabricated by the police in order to inculpate the applicant, a fabrication which would have included the placing of incriminating evidence in various places in the flat for the purpose of taking incriminating photographs.

11.  The applicant himself did not testify at trial but called five defence witnesses.  They were, first, a Ms Mok who said she lived at the premises and had keys to the place.  She said that the applicant did not live there but came there from time to time to consume drugs.  When she left the flat that morning, the applicant was not there.  Only later did she arrange to meet him there and it was she who was going to let him in.  The LV bag had been retrieved from his former residence by her after he had vacated that residence, and it then contained the travel documents but no drugs.  She was apprehended by the police upon her return to the flat later that day and told by them to incriminate the applicant.  The keys which the police said were said to be in the applicant’s jeans were in fact her keys.

12.  Mr Mak testified next and said he also lived at the premises and it was he who let the applicant into the flat shortly after he woke at about 9 am.  He then went out and met Ms Heung Yeung (the third defence witness) and after meeting her he was stopped by the police and keys to the flat were taken from him.  This evidence, if true, lent support to the suggestion that the police gained entry to the flat with those keys and found the applicant inside playing TV games.  His evidence was said to be supported by Ms Heung Yeung who testified she too was stopped by the police at about the same time as was Mak.

13.  Ms Tin was another defence witness.  She lived next door to flat B and she said that she was present when the police were there and when Ms Mok returned to the premises.  The main point advanced in the light of her evidence was that she puts the time at which the police were present as much earlier than suggested by them which, if correct, casts doubt, it is said, upon the veracity of their accounts.

The grounds of appeal

14.  The first ground of appeal is that the judge failed to direct the jury that if they found the applicant’s version to be true or possibly true, they were bound to acquit.  There is, with respect, nothing in this ground for it is manifestly clear from the summing-up that that was precisely the effect of the message conveyed by the judge to the jury.

15.  Next it is said that the judge failed to summarise the defence case fairly and there are a number of particulars advanced in support of this ground which we need not traverse for we are satisfied that the effect of the defence case and evidence was put squarely before the jury.

16.  The evidence in relation to the time at which the police operation took place was on the part of the defence witnesses not necessarily at odds with the police evidence.  The time estimate by Ms Tin was just that, an estimate, and it was not necessarily incongruent with the prosecution case but in any event the point was canvassed before the jury and the fact that the timing issue was an issue was a matter of which the jury was reminded by the judge and we have no reason to assume other than that it was fully rehearsed in counsel’s speeches.

17.  There are one or two other grounds which have been argued before us, such as the suggestion that the judge did not adequately deal with a jury question about the relevance of the quantity of drugs to the issue of trafficking but viewed in full context, her direction in answer to this question was adequate.

Result

18.  In the result, none of the grounds has been made out and the application is dismissed.

Prosecuting counsel’s personal opinion

19.  There is a matter concerning the advocacy of counsel for the prosecution at trial (not counsel who appears before us on this application) which has caused us concern.  When cross-examining the first defence witness, whose credibility was directly in issue, prosecuting counsel time and again suggested to her that her evidence upon one aspect or another was a lie.  Then this:

“Ms Mok, I think you’re telling us a lot of lies, aren’t you?”

And a short while later in relation to another answer she offered, prosecuting counsel said:

“I think that’s another … I think you’re telling us another lie Ms Mok.”

20.  Quite what answer other than a denial counsel expected to any one of these suggestions, we cannot say, but that is not to the present point.  The present point is that it is entirely inappropriate for counsel to express a personal opinion in the course of advocacy, let alone to do so in the presence of a jury; and for a prosecutor to do so in the presence of the jury is particularly objectionable because the role of prosecutor carries with it in the eyes of a lay jury a certain status: jurors are entitled to assume that a prosecutor, especially in a High Court trial, acts responsibly and carries with him considerable experience, so there may be a danger of a personal opinion carrying weight.  Looked at in the context of the whole in this case, we do not think that to have been a real danger in the present instance; but it should never be allowed.  With respect, the judge ought to have intervened and made clear to the jury that counsel make submissions and no more.

21.  We note too that at one stage of cross-examination, prosecuting counsel referred to the witness as a “silly girl”. There is no need or justification for this style of advocacy.  It is no mere mantra that prosecuting counsel act as ministers of justice.  That role is fundamental to the rule of law.  And this Court is anxious to stress (see also HKSAR v Kulemesin and others CACC 19 of 2010, unreported, 14 December 2011; and HKSAR v Chiong Bernard [2012] 5 HKLRD 86) the importance of measured and responsible treatment of witnesses: it is a professional duty so to treat witnesses and, in any event, constitutes much more effective advocacy.  

22.  We can but hope that when this type of behaviour (expressing personal opinions or treating a witness in a demeaning manner) manifests itself, presiding judges will be astute to nip it in the bud.  Fair prosecutorial behaviour is a measure of the standard of justice in a jurisdiction.  

23.  We do not lightly issue strictures such as these.  We do so because the fairness of our system and the perception of that fairness, both now and, importantly, in the future, require us to point to matters which deserve to be addressed.