HKSAR v. LING KA KEUNG, EDDIE

CACC 438/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2015

(ON APPEAL FROM HCCC NO. 439 OF 2014)

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REASONS FOR JUDGMENT

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

1.  The applicant sought leave to appeal against his conviction on 8 December 2015, after trial by Toh J and a jury, of trafficking unlawfully on 29 November 2006 in dangerous drugs, namely 3,164.45 grammes of heroin hydrochloride and 4,709 tablets and 4.5 grammes of tablet fragments containing 66.96 grammes of methamphetamine (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The Particulars of Offence of the count averred that the applicant committed the offence together with Cheung Chui Hau, Ted (PW1), Chang Shun Ming (PW2) and Hung Hsuan Ming (PW3). There is no application in respect of the sentence of 27 years’ imprisonment imposed on the applicant. At the conclusion of the hearing, we refused the application for leave to appeal against conviction and said that we would give reasons for that judgment in due course. That, we do now.

The Trial

The prosecution case

2.  It was not disputed that on 29 November 2006 the four men arrived at the Hong Kong International Airport by flight FT 824 from Siem Reap, Cambodia.  They went to a Ferry ticket counter inside the Airport building, where the applicant bought them four ferry tickets to travel to Shekou.  The applicant agreed with a member of staff at that counter that their baggage be grouped together and sent to the ferry company for onward consignment. 

3.  At around 13:25 hours, the baggage of Cheung Chui Hau, Ted (PW1) tested positively for the presence of ketamine in an examination by Customs & Excise officers in an ion scanner.  As a result, first a body search was conducted on Cheung Chui Hau. Heroin hydrochloride and Ice were found concealed on his person and in his shoes.  Then, a search of Chang Shun Ming (PW2) and Hung Hsuan Ming (PW3) revealed the presence of heroin hydrochloride and Ice concealed on their person and in their shoes.  No dangerous drugs were found on the person or in the shoes of the applicant.  The total amount of the dangerous drugs found on the persons of the three men and their shoes was particularised in the Particulars of Offence of the Count on the indictment as the dangerous drugs in which the applicant and the three men had trafficked unlawfully.  The total retail value of those drugs was $2,581,176.

4.  Although he had been arrested, together with the other three men, on 29 November 2006 and held in custody, ultimately on 4 June 2007 the applicant was released from custody. 　On 29 June 2007, the three other men each pleaded guilty in the Magistracy to a separate charge of unlawful trafficking in the dangerous drugs found on their respective persons and shoes. 　Having been committed to the Court of First Instance for sentence, each of them was sentenced on 16 August 2007 to 14 years’ imprisonment.

5.  On 7 January 2014, the applicant was re-arrested on his arrival from Japan at Hong Kong International Airport.　 In November and December 2015 the applicant stood trial on the single count of trafficking unlawfully on 29 November 2006, together with the three men, in the total amount of the dangerous drugs found on the person and in the shoes of the three men. 　The three men gave evidence for the prosecution.

6.  The nub of the evidence of the three accomplices was to the effect that they had been recruited by the applicant to traffic unlawfully in dangerous drugs from Cambodia to the Mainland via Hong Kong.　　Cheung Chui Hau and Chang Shun Ming testified that they had first met the applicant in Zhuhai.  Hung Hsuan Ming said that he was introduced to the applicant by Chang Shun Ming in Phnom Penh, on an earlier trip to Cambodia. 　Chang Shun Ming and Hung Hsuan Ming were Taiwanese.

7.  The three of them travelled together on 22 November 2006 from Zhuhai to Hong Kong and flew to Phnom Penh.　 In Cambodia, they met up with the applicant and, having travelled between Phnom Penh and Siem Reap the four of them all stayed in the same hotel in Siem Reap where, during the early morning of 29 November 2006 the applicant provided them with dangerous drugs which he assisted them to strap to their persons. 　Also, he provided them with shoes in which dangerous drugs had been concealed. 　Then, they travelled by taxi to the airport in Siem Reap from where they flew to Hong Kong. 　Having entered Hong Kong, they made their way to the Ferry ticket counter, where the applicant bought tickets for their onward travel to the Mainland. 　Whilst they were waiting for the ferry, Customs & Excise officers intercepted Cheung Chui Hau and took him away to be searched. 　In that search, dangerous drugs were discovered. 　Subsequently, the other two men and the applicant were also searched. 　Dangerous drugs were found on the other two men, but not the applicant.

The defence case

8.  The applicant availed himself of his right to testify at his trial.  He was a 50-year-old man who lived in Taiwan and who had no previous criminal convictions in Hong Kong.  He had been a disc jockey working in a discotheque since 1984.　 He had been involved in setting up a discotheque in Taiwan. 　For most of 2006 he worked as a disc jockey in Zhuhai and Guangzhou. 　At the invitation of his friend, Wai Gor, to set up a discotheque in Cambodia, he travelled from Hong Kong to Phnom Penh on 5 November 2006.　He returned from Siem Reap to Zhuhai on 8 November.  That trip was paid for by Wai Gor.

9.  The applicant testified that he had come to know Cheung Chui Hau at a discotheque at which the applicant worked in around 2004.  He had come to know Chang Shun Ming and Hung Hsuan Ming in a discotheque in which the applicant worked in around August and September 2006. 　The former introduced him to the latter, as he had introduced him to Wai Gor around September and October 2006.

10.  On 20 November 2006, he travelled to Phnom Penh again to look for a suitable venue to set up a discotheque.  By coincidence, he met Cheung Chui Hau, Chang Shun Ming and Hung Hsuan Ming in the lobby of the hotel in which he was staying in Phnom Penh.  He said he was told by Chang Shun Ming that, if he wished to return to Hong Kong, an earlier flight could be booked from Angkor International Airport, Siem Reap. 　The applicant having agreed to that suggestion, all four of them travelled to Siem Reap, where they stayed one night in a hotel before flying to Hong Kong.  On their arrival at Hong Kong International Airport the applicant had purchased four ferry tickets at the request of Chang Shun Ming, who explained that he could not speak Cantonese and gave him a $1,000 note with which to purchase the tickets. 　It so happened that all of them were going to Zhuhai, after transiting Hong Kong.

11.  The applicant denied his involvement in the drug-trafficking activity in which the three men were involved. 　Their evidence to the contrary, was false. 

Grounds of appeal against conviction

12.  By Ground 1 of the grounds of appeal against conviction,  Mr Victor Lee complained that, whilst the judge had directed the jury that joint enterprise “…can be inferred from the behavior of the parties” [1], she failed to give any directions as to the drawing of such inferences.[2]

13.  By Ground 2, it was submitted that the judge had failed to direct the jury that, even if they rejected the applicant’s innocent explanations in respect of his earlier trip to Cambodia, which the prosecution alleged was a ‘trial run’ of his drug-trafficking activities, such rejected explanation could not be used to establish his guilt of the offence for which he stood trial.[3] 

14.  By Ground 3, it was submitted that the judge should have warned the jury to treat the accomplices’ evidence with “particular” or “utmost care”, rather than “some care”.  Mr Lee submitted such a warning was necessary in the special circumstances of this case, in which there were numerous internal and external inconsistencies in the witnesses’ evidence. 　Furthermore, the judge failed to direct the jury that “…when considering the truthfulness and reliability of the evidence of an accomplice witness, they must bear in mind the possibility that the witness may lie in order to obtain a sentence discount.” [4]

15.  By Ground 4, it was submitted that the judge erred in failing to give the jury appropriate directions in respect of the dangers inherent in the evidence of the accomplice witnesses, in particular in failing to “strongly caution” the jury against relying on such evidence and in failing to direct them “to look for supporting materials” before relying on such evidence.

The respondent’s submissions

16.  In relation to Ground 1, Mr Jonathan Man submitted that, in proof of the averment that the applicant was a party to a joint enterprise with the accomplice witnesses to traffic unlawfully in the dangerous drugs found on their persons and in their shoes, the prosecution relied on their direct evidence, not on inferences to be drawn against the applicant from the evidence accepted by the jury.  Accordingly, it was unnecessary for the judge to give any directions on the drawing of inferences.

17.  In respect of Ground 2, Mr Man invited the Court to note that the judge had reminded the jury that the applicant had disagreed with the suggestion, put to him in cross‑examination by counsel for the prosecution, that his visit to Cambodia on and between 5 and 8 November 2006 was a ‘trial run’ of the subsequent visit to Cambodia, which had resulted in the arrest of the applicant and the three accomplice witnesses in Hong Kong on 29 November 2006.  He submitted that the judgment of this Court in HKSAR v Chen Huandi wasdistinguishable from the judge’s directions to the jury in respect of the applicant’s case.  In that case, the judge directed the jury, in the context of the applicant’s explanations in evidence for her earlier journeys to Kuala Lumpur and Bangkok, to consider “what were the actual reasons” for those journeys and to have regard to that evidence in determining her credibility.  The judge had given no such directions in respect of the applicant.

18.  In respect of Ground 3, Mr Man submitted that the directions to be given by a judge to a jury in respect of the evidence of accomplice witnesses was a matter that lay within the discretion of the judge, having regard to the particular facts of the case.  Accordingly, an appellate court should be slow to interfere.  Where the jury was alive to the potential unreliability of a prosecution witness, the need for a warning would be less obvious and, even if given, less strong terms would suffice.[5]  Mr Man suggested that the judge had given the jury a detailed account of the evidence of the accomplice witnesses, identifying the inconsistencies and discrepancies in that evidence.  He submitted that the judge’s directions were sufficient in all the circumstances.

19.  Of Ground 4, Mr Man submitted that the evidence of the accomplice witnesses was consistent in respect of the central issue, namely that in Cambodia the applicant had provided them with the dangerous drugs found on their person and in their shoes.  It was within the judge’s discretion not to give a direction in respect of corroboration of their evidence.

A consideration of the submissions

Inferences

20.  At the outset of her summing up, the judge suggested to the jury that:[6]

“ … the only issue in this case is whether the defendant jointly trafficked in the dangerous drugs on 29 November 2006 together with the first and second and third prosecution witnesses by importing these drugs into Hong Kong from Cambodia.”

Then, the judge said:[7]

“ So, as you will know now, the main evidence comes from the three prosecution witnesses, PW1, 2 and 3.”

21.  Of the prosecution case, the judge said:[8]

“ …in this case the prosecution, as I have said, rely on these three - first, second and third - prosecution witnesses to prove the defendant’s knowledge and participation in importing the drugs from Cambodia to Hong Kong.”

22.  Subsequently, the judge pointed out to the jury the basis on which the prosecution relied on the evidence of those witnesses:[9]

“ In this case, the prosecution is saying that from the evidence the defendant, according to PW1, 2 and 3, was the person who had custody and control of the drugs because they say that the defendant all along was in charge of making sure that these drugs were strapped tightly on their persons and the defendant had taken them from Cambodia to Hong Kong, taken them to the ferry ticket counter, bought the ferry tickets, and that at the end of the day they were told that the defendant would take custody of all the drugs and dispose of it, so the prosecution is saying that if you accept the evidence of PW1, PW2 and PW3, you can have no doubt that the defendant was indeed in possession of the drugs found on the first, the second and the third prosecution witnesses.”

23.  Of the defence case, the judge said:[10]

“ …the defendant says no, he did not know anything about the drugs and so therefore he did not possess these drugs together with PW1, 2 and 3. So if you think what he says is true or may be true, then he must be acquitted.”

24.  Of the applicant’s evidence of how he came to be in the company of the three men, the judge said that he had testified that, having travelled to Phnom Penh in Cambodia together with Wai Gor for a trip of eight or nine days to inspect sites for a discotheque:[11]

“ …a few days before leaving, he came across the three prosecution witnesses in the lobby of the hotel quite by accident, and the defendant said he was in the lobby because he had arranged to go to see a disco with Wai Gor…”

25.  Thejudge went on to describe the applicant’s testimony of how he had remained in Phnom Penh after Wai Gor left, during which “… he had fun and went to disco together.” with the three men.  The applicant testified that, at the suggestion of Chang Shun Ming, he had travelled with the three men to Angkor Wat and returned with them to Hong Kong from Siem Reap.[12]

26.  In the context of giving the jury directions in respect of the prosecution case that the applicant was a party to a joint enterprise with the three accomplice witnesses, to traffic unlawfully in the dangerous drugs stipulated in the Particulars of Offence, the judge said of the parties to such a joint enterprise:[13]

“ Each may play a different part but if they are acting together as part of a joint plan or agreement to commit the offence, each are equally guilty.

   So in a joint enterprise it does not necessarily mean that all four persons had to be carrying drugs on them.”

27.  Of evidence relevant to proof that the applicant was a party to the joint enterprise alleged by the prosecution, the judge said:[14]

“ …the prosecution does not need to show you a contract signed by everybody to say, “We are going to do this.” In fact, nothing need be said. It could all be done by a nod and a wink and it can be inferred from the behaviour of the parties.” [Italics added.]

The italicised parts were a paraphrase of part of Specimen Direction 8.3 A ‘Joint Enterprise’, of the Judicial Institute’s Specimen Directions.

28.  However, having given those general directions to the jury, immediately thereafter the judge reminded the jury of the evidence adduced at the trial relevant to proof that, although no dangerous drugs had been found on the person or in the possession of the applicant, nevertheless he was a party to a joint enterprise with his three named accomplices to traffic unlawfully in the dangerous drugs by importing them into Hong Kong, the ultimate objective being to export them to Zhuhai:[15]

“ Now, in this case, according to the first three prosecution witnesses, the aim was to bring the drugs to Zhuhai for the defendant to dispose of, so each of them played their part in this joint enterprise. Therefore, your approach should be, if you are sure that with the intention, the common intention to commit this offence which I have just mentioned, that the defendant took some part in this joint enterprise in participating together with PW1, 2 and 3 to import these drugs into Hong Kong, then he is guilty.” [Italics added.]

29.  Significantly, the judge opened this part of her directions by saying “Now, in this case”.  Then, the judge went on to refer to the direct evidence adduced at trial by the three accomplice witnesses.  Their evidence of course was the crux of the prosecution case.  The evidence, adduced in the admitted facts, that the applicant had paid for the four ferry tickets for the four men to travel to Shekou and that he agreed that the four pieces of luggage be consigned together for the journey was evidence that was consistent with and supported the prosecution case that the applicant was a party to a joint enterprise.

30.  In the prosecution’s closing speech, in the context of the evidence that no dangerous drugs had been found on the person and in the possession of the applicant at the time that he and the other three men had been searched, Mr Arthur said:[16]

“ Whether or not he was carrying drugs into Hong Kong himself, he was still part of the joint enterprise. He was still with the others and you know that, because he travelled with them. He -- according to the admitted facts, as you will have, he was the one who arranged the ferry tickets and he was the one who agreed that all the baggage should go together. Four of them going to Shekou to Zhuhai; bags all go together. He did that.

So, on the admitted facts alone, you may well say, “Yes, of course, he was part of the joint enterprise.”  [Italics added.]

31.  However, in context that was clearly a hyperbolic, rhetorical flourish.  It was not the basis on which the prosecution pitched its case.  That much was made perfectly clear by what Mr Arthur said immediately afterwards: 

“ But the prosecution, as I think I have made clear, says he was in this joint enterprise from beginning to the end and he was the leader, and we know from the evidence that all the drugs, when they got to Zhuhai, were to be handed to him.”

32.  That statement resonated with the opening remarks that Mr Arthur made in his closing speech, when he said of the evidence adduced at trial:[17]

“ …from that evidence you will know that in 2006 three men and their leader met in Zhuhai and they discussed and planned a drug-carrying enterprise.”

33.  At the conclusion of his closing speech, Mr Arthur said of the three accomplice witnesses:[18]

“ the prosecution says to you you can rely on Ah Hau, Dai Ming and Siu Ming. They are the rock upon which the prosecution case rests.”

34.  Then, he reminded the jury of evidence that was consistent with or supported the evidence of the three men:[19]

“ So what you have, members of the jury, four men, same hotel in Cambodia, same car, same hotel in Siem Reap, same taxi to the airport, same flight to Hong Kong, together at the airport in Hong Kong, four men going to exactly the same place with the drugs, Zhuhai. Four serious drug traffickers.”

35.  We have no doubt whatsoever that everyone in the trial understood that the prosecution case relied on the jury accepting the evidence of the accomplice witnesses, namely direct evidence.

36.  In any event, even if the prosecution case relies on circumstantial or inferential evidence it is normally unnecessary to give the jury a special direction as to how they are to approach circumstantial evidence, so long as the jury are directed that they may not convict the applicant unless they are sure of his guilt.  In his judgment, with which all the other judges agreed, in the Court of Final Appeal in Tang Kwok Wah v HKSAR [20], Bokhary PJ said:

“ It is normally unnecessary to give the jury any special direction on how they are to approach circumstantial evidence. Whether the prosecution’s case depends wholly or in part on circumstantial evidence, it is normally sufficient that the jury be directed that they may not convict unless they are sure of guilt. The House of Lords so held in McGreevy v. Director of Public Prosecutions [1973] 1 WLR 276…”

37.  Bokhary PJ went on to note “There may be exceptional circumstances in which a special direction on the drawing of inferences may be desirable or even necessary.” [21]  However, having said that it was “undesirable to attempt to define exhaustively the circumstances in which a special direction on the drawing of inferences would be necessary”, he observed:[22]

“ Beyond that, all that I would say about the exceptional circumstances in which a special direction on inferences will be appropriate is as follows. No question of giving such a direction even arises where all that the jury is really being invited to do is to assess a witness’s credibility and reliability in the light of other evidence.” [Italics added.]

38.  In his concurring judgment, Sir Anthony Mason NPJ explained that the direction that a jury could not draw an inference against an accused unless it was the only reasonable inference, went to the standard of proof in relation to the drawing of an inference of a fact constituting an essential element in the offence charged and not to what the law required by way of instructions to the jury, in a case in which the prosecution depended upon circumstantial evidence or the drawing of inferences.[23] In rejecting the argument that a direction should be given to a jury to the effect that no inference can be drawn against an accused unless it is the only reasonable inference, Sir Anthony Mason said:[24]

“ …There is no rule of law or rule of practice that requires the giving of a direction to the jury in terms of Lord Diplock’s statement in Kwan Ping Bong & Another v The Queen [1979] HKLR 1 in cases in which the prosecution is relying on circumstantial or inferential evidence to establish the accused’s guilt or an essential element in the offence charged. No distinction in principle can be drawn in this respect between cases in which the prosecution is wholly circumstantial and cases in which the prosecution seeks by inference to establish an essential element in the offence.”

39.  Clearly, in the applicant’s case the task of the jury was to assess the credibility and reliability of the various witnesses in the light of other evidence.  The judge directed the jury that in determining whether or not the count on the indictment had been proved against the applicant:[25]

“ You will do that having regard to the whole of the evidence, including the admitted evidence, and forming your own judgment about the witnesses and which evidence you find reliable and which you do not find reliable, both in the case of a witness for the prosecution and the defence. So you consider whether the witness has been telling you the truth, whether the witness has given you an accurate account of what happened, and so you may in the case of each witness accept or reject all or some of what he had said to you.”

40.  With specific reference to the three accomplices, the judge invited the jury:[26]

“ …to judge the evidence which you have heard whether these witnesses have told you the truth, are reliable in their evidence and have been honest to you.”

41.  Needless to say, the judge had given the jury repeated directions as to the burden and standard of proof.  At the outset of her summing up, she said:[27]

“ Now, as you have been told, the burden is on the prosecution to prove the case against the defendant, so therefore, the burden of proving that the defendant knew that there were dangerous drugs on all three prosecution witnesses and that he participated in the enterprise to traffic in dangerous drugs to bring these drugs into Hong Kong, that is always on the prosecution. So the issue is basically whether the prosecution has proved beyond a reasonable doubt, which simply means whether the prosecution has proved to your satisfaction so that you are sure that the defendant was trafficking in dangerous drugs by helping to bring these drugs into Hong Kong.”

42.  At the conclusion of the summing up, the judge repeated that direction:[28]

“ … you must be satisfied not only that the prosecution’s version is true but the prosecution has also to satisfy you beyond a reasonable doubt so that you are sure that all the essential elements of the charge have been proved.”

43.  Finally, the judge addressed, yet again, the approach to be taken if the jury rejected the evidence of the applicant:[29]

“ …you then consider the prosecution’s evidence, the witnesses, the admitted facts, the photographs and then consider whether the prosecution witnesses have been telling you the truth, whether they have been reliable in their evidence and accurate in their evidence. It is only if you are sure of their evidence, that you are sure of the defendant’s guilt, that the prosecution witnesses have that the defendant was trafficking in these drugs beyond a reasonable doubt so that you are sure of his guilt then you can convict.”

Conclusion  

44.  For the reasons we have set out, we are satisfied that there were no exceptional circumstances that required the judge to give the jury a special direction in respect of circumstantial evidence and the drawing of inferences.  Furthermore, we are satisfied that the judge’s directions in respect of the burden and standard of proof brought home to the jury that it was required of them that they reach a “sure conclusion of guilt” before they could convict the applicant.

‘Trial run’

45.  The applicant testified, and it was an admitted fact, that prior to his trip to Cambodia on and between 20 and 29 November 2006 he had made an earlier trip to Cambodia on and between 5 and 8 November 2006.  He accepted that his travel movements were similar in that he had flown from Hong Kong to Phnom Penh, travelled by road to Siem Reap from which he had returned directly to Hong Kong.  In cross-examination of the applicant, the following exchange ensued:[30]

“ Q. Was the trip to Cambodia, 5 to 8 November, a trial run for what you proposed to do in the next trip?

A. No.

Q. A trial run, perhaps checking out airports, hotels for your major drug trafficking drugs from Cambodia to Hong Kong on 29 November; you were practising for it.

A.   That’s not right.  I explained this yesterday. I arrived in Cambodia on 5 November and I stayed there for a few days.  I was told by Wai Gor, namely the boss who told me to go over there to inspect the sites, that there were two locations so I must travel there by road to inspect the site or sites; that was my only purpose.”

46.  At the hearing, Mr Lee acknowledged that no objection was taken to those questions by counsel representing the applicant at trial.  Similarly, he accepted that the point formed no part of his grounds of appeal or his written submissions.  Nevertheless, he asserted that the line of questioning was improper.

47.  Mr Lee invited the Court to note that, in his closing speech, counsel for the prosecution repeated the suggestion that the applicant’s visit to Cambodia on and between 5 and 8 November 2006 was a ‘trial run’:[31]

“ I think you know who I’m talking about when I say “the leader”, went to Phnom Penh and Siem Reap for what I have described as a trial run - that is, between 5 and 8 November.  He returned to Zhuhai and then you know that on 20 November he returned to Phnom Penh and you know that the three other men went to Siem Reap on 22 November.”

48.  Then, Mr Lee pointed to the submissions made by counsel for the applicant in his closing speech on the issue.  Of the applicant’s visit to Cambodia on between 5 and 8 November 2006 he said that counsel for the prosecution had suggested “Oh, the defendant went there for a purpose.  He was there for a trial run.”  Of that, he said:[32]

“ …there’s no evidence at all from the prosecution to say the reason why defendant went there for that trip was for a trial run of these drug-trafficking activities. You have only evidence from the defendant in court, telling you what he did during those trip, but from the prosecution there’s no evidence at all whatsoever.”

49.  In discussions between the judge and counsel at the conclusion of the speeches, in which the subject of the prospect of directions given to the jury in the summing up was canvassed, counsel for the applicant said:[33]

“ MR CHUI: I know it’s a small point, but it seems my learned friend had told the jury about the trip by the defendant to Cambodia on the 5th and staying until the 8th was...

COURT: Yes, yes.

MR CHUI:  ...a trial run.  It’s not supported by the evidence at all.”

50.  In reminding the jury of the applicant’s testimony on this issue, the judge said:

“ Now, he was cross-examined by Mr Arthur and he agreed that meeting up in Phnom Penh with all the prosecution witnesses was a coincidence and the fact that the trip on 28 November, the car trip, was exactly the trip he took in 5 to 8 November journey because he also flew back to Hong Kong from Siem Reap. He agreed he had on 5 November flown from Hong Kong to Phnom Penh and departed Siem Reap on 8 November, so he agreed that this was same as the trip in November, 20 November, and he flew to Phnom Penh and he returned on 29 November from Siem Reap.

So you remember that Mr Arthur’s suggestion to him, that this was a trial run for the trafficking to Hong Kong on 29 November, and he disagreed.

   He maintained in cross-examination that he was only there for inspecting the discos, and he said that he does not take dangerous drugs and he said he had no idea why the first prosecution witness, Ah Hau, and Dai Ming would say he takes dangerous drugs…”  [Italics added.]

51.  As McWalters JA observed during the hearing, it is to be noted that prosecuting counsel’s questions were merely in the nature of an enquiry.  There was nothing impermissible in making that enquiry.  Equally, there was nothing surprising in the fact that the applicant answered in the negative and reasserted the account he had given in his evidence-in-chief, namely that he was in Cambodia on behalf of Wai Gor to find a suitable venue for a discotheque.

52.  The context in which the judge’s accurate reminder to the jury of the cross-examination of the applicant is to be viewed is the standard direction that the judge gave earlier as to the evidential status of questions posed by counsel of a witness:[34]

“ Counsel’s questions or suggestions put to witnesses are not evidence. Only the answers which the witnesses give to those questions or suggestions are evidence. So to give you a simple example, members of the jury, if, for example, counsel puts to a witness, “I suggest to you that the cat was black”, and the witness said, “No, the cat was white”, the cat was black is therefore not evidence. What is evidence is the witness’s answer, that the cat was white.

If counsel suggests to a witness the cat was black and the witness says, “Yes, I agree”, then of course the evidence that the cat was black then becomes evidence because the witness has agreed to that.

So that is, what I mean in a simple example of the counsel’s questions not being evidence, only the witnesses answers becomes evidence.”

53.  Also, the judge had given the jury the standard direction that it was impermissible to speculate:[35]

“ You must decide this case only on the evidence that has been placed before you, and there will be no more, so, members of the jury, please do not speculate as to what evidence there might have been or may have been. That is all the evidence and it has been placed before you. The facts of this case are your responsibility.”

54.  Finally, it is to be noted that at the conclusion of the summing up the judge repeated her earlier directions[36] as to the approach to be taken by the jury, in the event that they rejected the applicant’s evidence:[37]

“So as Mr Arthur said to you, you do not say, for example, “I reject the defendant’s evidence so therefore I prefer the prosecution’s evidence and so he must be guilty.”  You cannot do that because you have to, even if at the end of the day you (decide that you) did not believe the defendant, then you put that aside, and as I have told you earlier, you then consider the prosecution’s evidence, the witnesses, (the statement) the admitted facts, the photographs and then consider whether the prosecution witnesses have been telling you the truth, whether they have been reliable in their evidence and accurate in their evidence.  It is only if you are sure of their evidence, that you are sure of the defendant’s guilt, that the prosecution witnesses have (proved) that the defendant was trafficking in these drugs beyond a reasonable doubt so that you are sure of his guilt then you can convict.”

55.  Mr Lee’s reliance on the judgment of this Court in HKSAR v Chen Huandi in support of his submissions is misplaced.  In that case, the prosecution case in respect of earlier trips made by the appellant to Kuala Lumpur and Bangkok prior to his arrival in Hong Kong from Kuala Lumpur on the occasion the subject of the trial and the directions that the judge gave the jury in respect of that issue were significantly different from the circumstances of this case.

56.  This Court quashed the appellant’s conviction for trafficking unlawfully in dangerous drugs found in a concealed compartment in her suitcase on 3 April 2011 on her arrival by aeroplane at Hong Kong International Airport having travelled from Kuala Lumpur.  There was no dispute that the appellant had made four visits to Kuala Lumpur in the period July 2010 and February 2011 and four visits to Bangkok in the period October to December 2010.  In her evidence, the appellant provided innocent explanations for those trips.  In the judgment of this Court, Cheung JA noted that the prosecution suggested that those trips were all taken by way of preparation for the unlawful drug trafficking, the subject of the count on the indictment.

57.  The judge directed the jury they were to have regard to whether or not those explanations were reasonable:[38]

“ What were the actual reasons for the defendant to travel to these places, Bangkok and Kuala Lumpur, and back? I have just talked in great detail about the matters you should take into account in assessing whether the defendant is credible.”

58.  In quashing the appellant’s conviction, Cheung JA said that the judge:[39]

“ …did not remind the jury in clear and specific terms that even if they rejected the appellant’s explanations on previous trips, they could not rely on this to find her guilty of the present charge.”

59.  HE WENT ON TO SAY:[40]

“ Given these doubts cast by the prosecution on those trips, the jury would likely have formed the view that even prior to the present offence the appellant had already engaged in drug trafficking activities in the various trips she had made to and from Kuala Lumpur and Bangkok.”

Moreover, he said that the judge::[41]

“ …not only failed to ask the jury not to speculate on the reasons for the appellant’s previous trips to Bangkok or Kuala Lumpur, but instead invited the jury to consider what the appellant’s purposes of visiting those two places were.” [Italics added.]

60.  We are satisfied that, having regard to all the directions of the judge in the applicant’s case, it would have been perfectly obvious to the jury that on the evidence adduced at trial that there was no evidence to support the prosecution’s suggestion in the cross-examination of the applicant that his earlier trip to Cambodia was a ‘trial run’.  They were directed not to speculate in the absence of evidence.  Moreover, they were directed that, even if they did reject the applicant’s evidence, it was not permissible to find the applicant guilty on that finding.  Rather, they were then to examine the prosecution evidence to consider whether or not they were sure of the applicant’s guilt.

Conclusion

61.  There is no merit in this ground of appeal.

Directions in respect of the accomplice evidence

62.  Of their approach to the three accomplice witnesses, the judge directed the jury:[42]

“ … in relation to the three prosecution witnesses, they are what is known, as Mr Chui has pointed out, as accomplices. You have to treat their evidence with some care. They have told you that they are each unhappy that the defendant was released, and in the case of the first prosecution witness, he said he had a grudge that the defendant did not look after him by giving him money nor get a lawyer for him, and as far as the other witnesses were concerned, they said that they are giving evidence because they felt that all four of them were participating in this venture but only three of them served their punishment.” [Italics added.]

63.  Then, the judge went on to emphasise the points that had been raised by the defence as to the jury’s approach to the evidence of the three accomplices:[43]

“ Now, Mr Chui on behalf of the defence has put forward to you that they were giving evidence against the defendant because they were hoping to get an immunity from prosecution, and that is true because they gave their first statement just before they pleaded guilty but they were not given immunity because they were sentenced each to 14 years’ imprisonment, so Mr Chui has said to you that they are hoping to get a reduction in sentence because as late as October this year Hsu Ming, PW3, was still applying for clemency from the Chief Executive, so take that into consideration, members of the jury. Use your common sense, as Mr Arthur says, and your experience as men and women of this world to judge the evidence which you have heard whether these witnesses have told you the truth, are reliable in their evidence and have been honest to you.” [Italics added.]

64.  It was conceded at the hearing that the judge was in error to have said that the three accomplice witnesses had given their first non-prejudicial statements before they had pleaded guilty.  In fact, all three accomplices pleaded guilty in the Magistracy on 29 June 2007, albeit that they were not sentenced in the Court of First Instance until 16 August 2007.  The first of their non-prejudicial witness statement, that of Cheung Chui Hau, was not made until 4 July 2007.  But, if there was an error, it was one in favour of the applicant, insofar as it allowed the submission to be made that they had made their first non-prejudicial witness statement in hope of securing an immunity.

65.  In the discussions with the judge prior to the summing up, counsel for the applicant did not seek any specific direction in relation to the approach to be taken by the jury to the evidence of the three accomplices.[44]  Further, although counsel for the applicant did raise an issue in relation to the judge’s directions at the beginning of the second day of her summing up, after she had directed in respect of the need for “some care” in respect from three accomplices, counsel did not raise any objection.[45]  Similarly, he did not raise any matter, when asked by the judge, at the conclusion of the summing up,[46] if there was anything he wished to raise.

66.  Notwithstanding those circumstances, Mr Lee submitted that the judge ought to have directed the jury to approach the evidence of those witnesses with “particular care” or “utmost care”.  In his oral submissions, he went on to submit that the judge ought to have directed the jury that it would be “wise” to look for supporting evidence of their testimony.

67.  In the course of the hearing, Mr Lee readily acknowledged that the judge had comprehensively identified the internal and external inconsistencies in the testimony of the three accomplice witnesses.  Mr Lee was correct to do so.  The judge had reminded the jury of those matters at considerable length.[47]

68.  As is apparent from the passage from the summing up cited above [48], there is no merit in the submission made by Mr Lee that the judge had failed to direct the jury that, in considering the truthfulness and reliability of the evidence of the three accomplices, they were “…to bear in mind the possibility that the witness may lie in order to obtain a sentence discount.”  That was the clear effect of the judge’s direction.  It was the case advanced on behalf of the applicant, in counsel’s closing speech, in respect of the three accomplices that:[49]

“ …they may well have their own purposes though, so they might falsely accusing (sic) the defendant, putting him as a scapegoat, so that they could receive reduction in sentence…” [Italics added.]

69.  Of the significance of that issue, namely that the three accomplice witnesses were testifying in order to secure a reduction in their sentence, it is to be noted that they had all served more than nine years of their sentences of imprisonment and were to be released in about four months.  That they did not care about a reduction was the rejoinder to the suggestion by Cheung Chui Hau [50] and Hung Hsuan Ming.[51]

70.  As Mr Man pointed out in his written submissions the requirement that a trial judge must warn the jury that it is dangerous to convict on the uncorroborated evidence of a witness was abrogated by statute for an accomplice by section 60 of the Criminal Procedure Ordinance, Cap. 221.  Nevertheless, in his judgment in the Court of Final Appeal in Wong Chi King v HKSAR [52], with which all the other judges agreed, Chan PJ, as Chan NPJ was then, noted “…the judge still retains a discretion to warn the jury to exercise caution whenever he considers it appropriate to do so”.[53]  He went on to observe, that the judgment of Lord Taylor LCJ in R v Makanjuola and R v E [1995] 2 Cr App R 469, in which guidance was given to the approach to be taken, had been approved in Hong Kong.[54]

71.  Chan PJ went on to say:[55]

“ Whether to give the jury a warning to exercise caution when considering the evidence of a witness is entirely a matter of discretion for the trial judge. Where there is an evidential basis to suggest that a witness’s evidence may not be reliable for whatever reason, the trial judge should consider giving such a warning to the jury. And if he decides to do so, the terms of his direction will depend on the circumstances of each case. As Lord Taylor put it in Makanjuola, at p. 473:

“It is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case.  Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.”  

A trial judge has charge of the trial. He has heard the evidence of the witness and is well aware of the issues involved, the relevance and importance of the evidence to those issues and other relevant circumstances. He is thus in a position to assess whether there is any need to give a caution warning and if so, in what terms. An appellate court will usually be slow to interfere with the exercise of his discretion unless the failure to give a caution warning or to use the appropriate terms when giving the warning, has, adopting the words of Lord Sumner in Ibrahim v R [1914] AC 599, 615, “deprived the accused of the substance of a fair trial.” ” [Italics added.]

72.  Of the circumstances relevant to the judge’s consideration, Chan PJ said: [56]

“ One of the relevant circumstances which a trial judge should take into account is whether the risk or danger in relying on the evidence of a particular witness is obvious to the jury.”

73.  Having referred to the case of R v Spencer [57], Chan PJ said:[58]

“ However, in some cases, as pointed out by Lord Ackner at p. 142, “the potential unreliability of the sole or principal witness for the prosecution is obvious for all to see.” In such cases, the need to give a warning would be less and if one is to be given, somewhat less stronger terms would suffice for the purpose.”

74.  We are satisfied that the dangers of relying on the three accomplice witnesses would have been blindingly obvious to the jury.  Similarly, we are satisfied that the warning that the judge gave the jury that they approach the evidence of the three accomplice witnesses with “some care”, in the context of her extensive recitation of the internal and external inconsistencies in their evidence and their explanations for those matters, was appropriate and sufficient in all the circumstances of the case.

Conclusion

75.  In the result, we were satisfied that there was no merit in this or any of the grounds of appeal against conviction.  Accordingly, we refused the application for leave to appeal against conviction.

[1] Appeal Bundle, page 24 D.

[2] HKSAR v Mak Chai-kwong(2016) 19 HKCFAR 1, paragraph 30; and HKSAR v Winnie Lo (2012) 15 HKCFAR 16, paragraph 115.

[3] HKSAR v Chen Huandi[2013] 3 HKLRD 188.

[4] HKSAR v Wong Lin Hung (FAMC 26/2013: unreported; 23 December 2013, at paragraph 6).

[5] Wong Chi King v HKSAR(2009) 12 HKCFAR 481, at paragraphs 15-17.

[6] Appeal Bundle, page 13 K-M.

[7] Appeal Bundle, page 13 R-S.

[8] Appeal Bundle, page 18 D-F.

[9] Appeal Bundle, page 22 B-I.

[10] Appeal Bundle, page 22 I-L.

[11] Appeal Bundle, page 51 Q-S.

[12] Appeal Bundle, page 52 A-F.

[13] Appeal Bundle, pages 23 Q - 24 B.

[14] Appeal Bundle, page 24 C-D.

[15] Appeal Bundle, page 24 G-L.

[16] Appeal Bundle, page 75 F-J.

[17] Appeal Bundle, page 70 D-E.

[18] Appeal Bundle, page 78 P-Q.

[19] Appeal Bundle, page 78 Q-S.

[20] Tang Kwok Wah v HKSAR(2002) 5 HKCFAR 209, at paragraph 11.

[21] Tang Kwok Wah v HKSAR, paragraph 13.

[22] Tang Kwok Wah v HKSAR, paragraph 16.

[23] Tang Kwok Wah v HKSAR, paragraphs 61-66.

[24] Tang Kwok Wah v HKSAR, paragraph 66.

[25] Appeal Bundle, page 15 D-I.

[26] Appeal Bundle, page 25 J-L.

[27] Appeal Bundle, pages 13 S - 14 D.

[28] Appeal Bundle, page 55 E-G.

[29] Appeal Bundle, page 55 J-O.

[30] Appeal Bundle, page 145 F-J.

[31] Appeal Bundle, page 70 F-H.

[32] Appeal Bundle, page 81 A-F.

[33] Appeal Bundle, page 104 C-F.

[34] Appeal Bundle, pages 17 M - 18 B.

[35] Appeal Bundle, page 16 J-M.

[36] Appeal Bundle, page 26 B-G.

[37] Appeal Bundle, page 55 G-O.

[38] HKSAR v Chen Huandi, paragraph 13.

[39] HKSAR v Chen Huandi, paragraph 14.

[40] HKSAR v Chen Huandi, paragraph 15.

[41] HKSAR v Chen Huandi, paragraph 15.

[42] Appeal Bundle, pages 24 R - 25 D.

[43] Appeal Bundle, page 25 E-L.

[44] Appeal Bundle, pages 100-5.

[45] Appeal Bundle, pages 107 A - 108 S.

[46] Appeal Bundle, pages 108 T - 109 D.

[47] Appeal Bundle, pages 31 M - 33 E (PW1); pages 37 J and 39 A - 40 F (PW2); and pages 46 R - 47 A and 47 Q - 51A (PW3).

[48] Judgment, paragraph 63.

[49] Appeal Bundle, page 84 C-D.

[50] Appeal Bundle, page 32 A-C.

[51] Appeal Bundle, page 50 N-P.

[52] Wong Chi King v HKSAR(2009) 12 HKCFAR 481.

[53] Wong Chi King v HKSAR, paragraph14.

[54] R v Chu Ip Pui [1997] HKLRD 549, at page 552; approved by the CFA in HKSAR v Leung Chi Keung (2004) 7 HKCFAR 526, at paragraph 33.

[55] Wong Chi King v HKSAR, paragraphs 15-16.

[56] Wong Chi King v HKSAR, paragraph 17.

[57] R v Spencer [1987] 1 AC 128.

[58] Wong Chi King v HKSAR, paragraph 17.