HKSAR v. CHAN CHING HO AND OTHERS

CACC 456/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 456 OF 1999

(ON APPEAL FROM HCCC 329 & 386 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 20 August 1999, the Applicants (D1, D2 and D3 respectively at trial) were convicted of drugs offences following a trial before Mr Recorder R. Wong, SC. D1 and D3 were found guilty of jointly trafficking in a mixture containing 304.35 grammes of heroin hydrochloride (count 1). The second count alleged against all three defendants that they had trafficked in a mixture containing just over 4.9 kg of heroin hydrochloride. They now seek leave to appeal against their convictions.

Alleged pressure on jury during late retirement

2. Mr Wright, on behalf of D2, alleged in a single ground of appeal that a material irregularity occurred in the concluding moments of the trial or, alternatively, that the verdict ultimately returned by the jury was unsafe and unsatisfactory. Both of these propositions stem from what Mr Wright contended was the pressure put upon the jury by the Recorder which caused the jury to hurry their verdicts.

3. The Recorder summed up to the jury on 20 August 1999 and completed what he had to say at 11.01 a.m. Counsel, in the absence of the jury, then invited the Recorder's attention to three matters which caused the Recorder to recall the jury for further directions. The jury returned for the second time at 11.21 a.m. At 4.32 p.m. the jury were recalled once more, this time for the purpose of swearing in new ushers. The process took just two minutes and the Recorder, on this occasion, told the jury why they had been recalled and stated:

"Please do not feel that you are under any pressure of time whatever."

4. The court next reassembled at 7.29 p.m. The Recorder explained to counsel that he proposed to make an inquiry of the jury as to whether they were in a position to reach a conclusion within half an hour. If not, he was going to direct them to retire and rest. This course found general favour with all counsel. The jury came back into court at 7.33 p.m. At this time, reading from p. 36 of the appeal bundle, the Recorder addressed the jury and the following dialogue took place:

"Court: .... The accused are entitled to have your unfettered attention in relation to their fate, and I pay homage to you in relation to the efforts that you have spent so far in deliberating your verdict, but the accused is entitled to your fresh and concentrated mind.

You have been deliberating since 11.30, so may I enquire of the foreman - and I would invite the foreman to answer in as simple a term as possible - whether you are likely to reach a verdict within say half an hour? Yes or no?

Foreman: No, I don't think so, because ....

Court: Right, then I think that I would invite you now to rest. There is accommodation in the Supreme Court and, of course, there is going to be telephone facility for you to notify your family, but again I urge you not to discuss your case with any member of your family, and there will be accommodation and other facilities to ensure your comfort.

But under the law, you have to be kept together until you arrive at a verdict. So may I invite you now to rest within the precincts of the court room. The usher will ensure that the relevant facilities will be made available to you, and I invite you now to rest and resume deliberation at 9 o'clock tomorrow.

Foreman: So what happens if I said we could reach a verdict, like, within two hours or something?

Court: May I ...

Foreman: ....(indistinct) or one hour.

Court: One hour. I see. Then I think we will wait for ....

Foreman: Because we've been able to reach some of the verdicts, but we are still just discussing on one matter.

Court: I see. Right. I would prefer not to know about it.

Foreman: Okay.

Court: So if you think that one hour is sufficient, I think then, now I bow to your judgment, but you must keep it uppermost in your mind that the accused is entitled to have your fresh consideration. So if you are tired, you must adjourn and rest.

Foreman: Sure.

Court: Right. So you reckon it's ...

(Prosecuting Counsel): Yes, my Lord, may I suggest that there is no need for the jury to keep their promise, that ...

Court: Yes. No ....

(Prosecuting Counsel): .... it has to be within an hour.

Court: Absolutely.

Foreman: Yes, I understand there's no guarantee.

Court: Yes.

(Prosecuting Counsel): Thank you, yes. In fact, if you can't reach it within one hour, so be it, in fact. Thank you. Yes.

Court: Right, yes. Thank you. Then, I think we'll wait for your deliberation and, please, I emphasise that there's no pressure at all on you to reach any decision tonight.

Foreman: So what happens if we just find out that we couldn't reach a verdict within an hour, then we'll notify your usher to ...

Court: Yes.

Foreman: .... inform you that we may not be able to come to a conclusion within an hour, then I will notify you.

Court: Yes. Right, thank you so much.

Foreman: Thank you."

5. The jury then went out for the last time at 7.37 p.m. About an hour later, the jury convicted all the defendants.

6. Mr Wright submitted that the Recorder was in error when he permitted the jury "one more hour" in which to deliberate on their verdicts which was, he suggested, the effect of what had been said to them.

7. D1 and D3 are not represented. They also complained that the jury had been put under pressure to return hasty verdicts. D1 stated that the length of time that the jury were in retirement in itself showed that there were "a lot of doubts in the case". D3 made a similar point and added his concern that at least one juror had failed "to fulfil his civil obligations" because he had sought to have his travel allowance increased. As to this last aspect, we do not need to say more than that this cannot form a valid ground of complaint.

8. Dealing with the main points raised in this ground of appeal, it was undoubtedly late in the day for the jury to have returned their verdicts, and the Recorder was right to have discussed his concerns with them. However, it will always be a matter for the exercise of judicial discretion when deciding the point at which a jury should adjourn their deliberations until the next day. Faced, as the Recorder was, with a jury which had reached "some of the verdicts" but were "still discussing on one matter", he decided to "bow to (their) judgment" and to allow them rather more than half an hour in which to continue to deliberate. In doing so, he reminded the jury that if they were tired, they must adjourn and rest. The foreman had clearly indicated that he understood that there was "no guarantee" that the jury's verdicts had to be returned within an hour and that the usher would be informed if that period of time was insufficient.

9. At all times, the Recorder had emphasised that the jury were to regard themselves as being under no pressure. The Recorder had been at pains to remind the jury that there was "no pressure at all on (them) to reach any decision tonight", and that the defendants were entitled to their "fresh and concentrated mind". It is abundantly plain that the foreman had understood the jury's responsibilities. There is no suggestion from any of the dialogue which took place after the jury returned to court at 7.33 p.m. that pressure was put upon them to reach a verdict in haste and it must be assumed, unless there is evidence to the contrary, that jurors will be faithful to the oath they have taken to return true verdicts. The jury gave every appearance of having been fully alert to its responsibilities and we can say that it would have been inappropriate in the circumstances, late though it was, for the Recorder to have denied the jury the further time they had requested. This was a proper exercise of judicial discretion when all reasonable steps had been taken by the Recorder to ensure that the jury appreciated they were under no pressure of time.

10. In the course of argument, we were referred to The Queen v Akano and Another T.L.R. 3 April 1992, which merely reiterates that overnight rest for a jury is preferable to a continuous sitting well into the evening to avoid a tired jury reaching a verdict which they might not have reached if they had approached the evidence with a fresh mind. The English Court of Appeal stated that it was not the length of the jury's retirement that might give rise to concern but the part of their retirement which extended into the evening.

11. In the present case, we can see no cause for concern. We have therefore concluded that there is no merit in this ground of appeal.

Prosecution's Case

12. Before turning to D1 and D3's homemade grounds of appeal, it is necessary to consider some of the background to the case. In this respect, we are grateful to Mr Vincent Wong, who appears on behalf of the Respondent, for his diligent analysis of the evidence which, to a large extent, we can adopt.

13. The trial arose as the result of an undercover operation conducted by three police officers (PW1, PW2 and PW3). The initial part of the operation was given assistance by an informer referred to as "Ah Tsap" who was introduced to PW1 and PW2 on 2 March 1998. There were two drugs transactions on 4 and 10 March 1998, which formed the subject matter of the two counts on the indictment.

14. On 3 March 1998, PW1 picked up "Ah Tsap" and D3. D3 said that he could not transfer "boon chek" (half a unit) that night because handing over at night would easily be discovered by the police.

15. There was evidence in the trial that in the trade of heroin, the unit of sale was called "chek" and that one "chek" represented 700 grammes of heroin. A popular means of packaging heroin is to divide it into two packets of 350 grammes, each known as a "half chek".

16. It was decided that the handover would be on the following morning in Tsz Wan Shan. PW1 said that he would need more "cheks". D3 said that he could supply whatever requirement was needed, and that there would be a discount for large quantities. PW1 said that he wanted "US dollars" (high purity heroin) and not "HK dollars" (adulterated heroin). PW1 said that he might be taking 20 cheks per month. D3 said that he would talk to his boss.

17. On 4 March at 5.45 a.m., PW2, together with "Ah Tsap" and others, went to Tsz Wan Shan. D1 appeared and told "Ah Tsap" to pay. "Ah Tsap" paid $65,000. D1 then directed PW2 to a taxi. They stopped at a kerosene station and then boarded a private vehicle. Thereafter, PW2 went to another private vehicle and the passenger in that second vehicle handed over the drugs to him. PW2 later alighted with the drugs.

18. During the evening of that day, during a meal in a restaurant, D3 told PW1 that he could get more "cheks" (units) at $11,000. D3 asked PW1 how much he needed. PW1 replied that he wanted 7 to 8 "cheks" and he would specify a time for delivery in due course.

19. On 7 March 1998, PW1 told D3 that he wanted the goods on 10 March. PW1 asked for details of time, place and money. D3 said that he would call PW1 later about this. D3 said that the boss might come to effect the handover.

20. On 10 March during the evening, PW1, PW2, PW3 and "Ah Tsap" went to the Hon Po Restaurant where D1 was already present. D1 said that his boss agreed to allowing PW1 to take his fokis to the meeting. D3 then arrived and all the parties then left the restaurant. PW1, D1 and two other undercover officers left in one taxi. PW2, PW3, D3 and "Ah Tsap" took another taxi. The first group arrived at the Po Cheuk Restaurant and the second group was taken by D3 to receive the goods.

21. D1 said that PW1 had to take the money first but PW1 refused. D1 then inspected the money in a bag which contained $770,000. PW1 said that upon receipt of goods, he would give one "chek" to a customer and would get the balance of $110,000. D1 then made various telephone calls. Later, D1 said to PW1 that PW1's two fokis had moved into the "meal car", an expression which was used to describe the car with the drugs.

22. D2 then arrived at the Po Cheuk Restaurant. D2 acknowledged D1 and took a seat. D1 introduced D2 as the one from "Tai Chong" which, in the context, could be understood to mean the party with a lot of drugs to sell. D1 asked D2 whether he had brought anything with him in which the money could be put. D2 went away and came back with a black plastic bag. There followed a discussion between D1 and PW1 and an argument took place on the telephone about where to drop off PW1's fokis and concerning PW1's "customer" who was not happy and would not take the "goods". These conversations were in the presence and hearing of D2.

23. D2 later said to PW1 that he wanted to check the money. PW1 said to D2 that he had $770,000 with him. He explained that after his fokis had given one "chek" to his customer he would collect a further $110,000, bringing the total to $880,000. D2 said that he wanted to see if the sum was correct. D2 then methodically counted the piles of notes and put them into his black bag. PW1 said that he wanted the money back. PW1 told D2 that he would only pay after his side had received the "goods". D2 agreed to this.

24. Meanwhile, the party with PW2, PW3 and D3 had gone to the junction of Yuk Wah Street and Yuk Wah Lane. D3 gave them two packets of Vitasoy for identification purposes and told them to wait. PW2 and PW3 went to a 7-Eleven store where a male approached them and led them to a private vehicle. PW2 and PW3 boarded the car without D3. The car followed a circuitous route. When it stopped, PW2 and PW3 were asked to get into another car. In that second car, a paper bag containing drugs was handed to PW3 and PW2 pressed the driver to take them to the Regal Airport Hotel. On arrival, PW2 and PW3 subdued the occupants of the vehicle and they were arrested.

25. Finally, returning to the events at the restaurant, D1 received a further telephone call. He passed the telephone to D2. They both appeared nervous and were arrested shortly afterwards.

26. The case against D1 was further strengthened by admissions made by him which were ruled admissible after a voir dire. In the post-record, he had admitted that he was a middleman for the sale of the goods in respect of the second count. In a video interview, he admitted he was helping some others look for white powder. He knew that the matter transacted at the Hon Po Restaurant concerned white powder. His role was the introduction of the parties. His reward for the whole transaction (in count 2) was to be $24,000 or $3,000 for each block, a figure which coincided with the eight "cheks" (units) of drugs. On the first count, he admitted that his role was to take the buyer to get the white powder. His reward was $3,000.

Defence cases

27. D1 did not give evidence in the trial. His case was presented on the footing that he was present at the meetings on 4 March and 10 March in order to collect debts from D3. By way of contrast to this, D3, who did give evidence, said that his meetings were connected to a job opportunity which had arisen in Japan. For this purpose, he had to see "Ah Tsap". D2, whose role depended on what interpretation the jury placed on his activities on 10 March, gave evidence that his involvement was confined to the collection of accounts from book-making and gambling activities, working for a 14K triad society "big brother" who he knew as "Ah Chan". Clearly all three defence cases were in very stark contrast to the prosecution's case that they were knowingly engaged in heroin trafficking.

D1's homemade grounds

28. D1 alleged firstly that PW4 (who also gave evidence in the voir dire) had admitted lying in the witness box and concocting the admission after caution, recorded in a notebook, which had allegedly been made by D1. This somewhat unusual ground is followed by a further allegation which is that: "I was misled by Fong Tak-kei to admit guilt. Therefore I felt it extremely unfair to convict me". This is a reference to the video interview of D1.

29. There is, in the summing up, no reference by the Recorder to bear out D1's allegation that PW4 had given a concocted story on his own admission to the court. Furthermore, the evidence of D1's confession, recorded in the notebook before the video interview took place, had been admitted into evidence after a contested voir dire. Even more to the point, as Mr Wong remarked in the course of his adopted written submission, a copy of the testimony of that witness is available having been obtained for different purposes, unconnected to the appeal, which confirmed that PW4 had made no admission of the kind D1 has suggested.

30. In his next ground of appeal, D1 stated that he had no idea what the various terms and expressions meant which had allegedly been used to describe the heroin and he denied making any reference to white powder when speaking to the police undercover officers. He also argued that PW1 had lied in court when he gave evidence in ways which were patently incredible, to the effect that he was not carrying a tape-recorder on 4 March 1998 and yet a few days later, on 10 March, again without a tape-recorder, he had attended a meeting carrying a gun and handcuffs. In this context, we can observe that the latter topic was fully ventilated in the trial. As to the former point, we need only repeat that, whatever D1 may or may not have known about the jargon used in the heroin trade, he did not give evidence.

31. In his final grounds of appeal, D1 raised further matters of fact which were before the trial court and they can take the matter no further at all.

32. There is no merit to any of D1's grounds.

D3's homemade grounds

33. D3 has placed two sets of written grounds before us. In these, he has criticised the professionalism of the interpreter at his trial alleging that he complained to his counsel because he was receiving only scanty knowledge about his trial. We observe that the Applicant was represented by experienced counsel in the trial and, as D3 himself accepted, counsel communicated no complaint about the interpretation to the court at any time. Apart from anything else, D3 not only had counsel representing him but solicitors as well, and we have not felt it right to attach any weight to the complaint he has only raised since his trial concluded.

34. D3 also complained about a letter which one of the jurors had written to the judge, the contents of which, he believed, were "not brought into open court". The mere fact that D3 was aware that there was such a letter is indicative that the letter was made public. Mr Wong very properly made inquiries from counsel who prosecuted in the trial. The result of that inquiry was that it seems there was a letter and that it was read out in open court. It related to a juror's concern that she needed to give her employer some explanation for her absence from work. When Mr Wright, who had appeared in the court below, was asked about this point, he remembered something to this effect having occurred. When the matter was then put to D3 today, he suggested that it might be because of the problems with interpretation that he had not fully appreciated what had happened. There is nothing in this point.

35. In a lengthy document setting out further grounds of appeal, D3 complained at the Recorder's reference in the summing up to D3's conviction in 1985 for gambling for which he was fined $100. Aside from this, D3 was able to put himself before the court as a man of previous good character and the Recorder, mindful no doubt that the conviction was a very old and minor one, went on to give a full direction as to the jury's approach to good character, as if no conviction existed at all. The suggestion that D3 did not put his character before the court was untrue, as he himself accepted in court today must have been the case, and we reject this as a ground of appeal.

36. In his next complaint, D3 stated that the Recorder mistakenly made a reference to D3's old pager number when he had a new number that had been given to him on 7 March 1998. This error, he suggested, gave rise to bias on the part of the jury against him. Even if such a mistake had been made, we are clearly of the opinion that the prosecution's case depended on the evidence of the observations and conversations related by undercover officers. The number of D3's pager was a matter of no importance.

37. In his next ground of appeal, which it is possible has arisen as the result of a misunderstanding on his part of what the Recorder told the jury, D3 suggested that the summing up informed the jury that he had gone to the police "to assist the police in finding out if he had anything to do with the case". But the summing up did not say anything of the sort. What the judge said was this:

"You have to balance all these factors against the fact that after March he stayed in Hong Kong. He resided in his own home, with his own family, and on the day of his arrest he went to the police station voluntarily and in order to assist the police in an incident wholly unrelated to this case. So you have to weigh this factor in his favour in your deliberation."

38. Next, D3 complained that the way the Recorder referred to the role of the informer was unfair to him. The passage which was criticised is as follows:

"A lot of play has been made by the defence of (D3) on the role of the informer. According to him, he reckoned that Ah Tsap implicated him, because it would be easier for Ah Tsap to explain things to both sides but, members of the jury, may I invite you to bear in mind that in this case it is not the informer who is implicating him. You have three police officers, PW1, PW2 and PW3. All pointing their fingers towards the 3rd accused. There is no suggestion that any of these officers were involved in a frame-up against him."

39. It is apparent that what the judge had said in this passage was accurate. The informer did not give evidence in the trial.

40. The next complaint made by D3 was that he believed he may have been caused prejudice as the result of a reference in D1's cautioned statement to someone called "Ah Wai" which happens also to be D3's name. As to this, the Recorder gave a proper direction to the jury that the contents of D1's statement could only be evidence against D1 and could not be regarded as evidence against D3.

41. In his last ground of appeal, D3 alleged that the Recorder had failed to give an express direction to the effect that if the jury was unsure whether or not D3 had been lying, he should be acquitted. He specifically brought to our attention CACC 412/1997 which we mention only to indicate that we have read it. This was a case where the directions given by the trial judge to the jury were fundamentally different to those given in the present case where the Recorder gave clear and impeccable directions on the burden and the standard of proof, impressing on the jury that at no stage did any of the defendants have to prove their innocence and that they could only convict a defendant if they were sure of his guilt.

42. In this context, specific complaint is made about the passage at p. 23K, which reads:

"Members of the jury, there is thus a sharp conflict between the prosecution's case and the case of the 3rd accused. You have to be satisfied beyond reasonable doubt that the 3rd accused, with actual knowledge that dangerous drug was involved, procured or supplied or dealt in or with the same, both on the 4th and the 10th. If you reject the 3rd accused's case and accept the prosecution's case, you will not find it difficult to conclude that on both counts the prosecution has proved the guilt of the 3rd accused beyond reasonable doubt."

43. This direction was perfectly proper and eminently sensible. This ground fails.

44. Accordingly, for the reasons we have given, all of the applications before us are dismissed.