HKSAR v. LAM MEI LING

CACC 125/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 125 OF 2016

(ON APPEAL FROM HCCC NO 501 OF 2015)

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REASONS FOR JUDGMENT

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

1.  The applicant faced an indictment alleging two counts of unlawfully trafficking in a dangerous drug, namely, approximately 3.50 grammes of a crystalline solid containing an unknown quantity of methamphetamine hydrochloride (“Ice”) (Count 1), and 24.85 grammes of a crystalline solid containing 24.17 grammes of Ice (Count 2), on 26 and 28 October 2014 respectively, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 4 May 2016, following a trial before Deputy High Court Judge D’Almada Remedios (as she then was) and a jury, she was acquitted of Count 1 but convicted on Count 2; as a result of which she was sentenced to 7 years and 9 months’ imprisonment.

2.  The applicant initially appealed against both conviction and sentence.  However, before us, she abandoned her application for leave to appeal against sentence and her appeal was formally dismissed by the Court.  Having then heard counsel on her application for leave to appeal against conviction, we refused leave and said we would hand down our reasons in due course.  These are our reasons.

The prosecution case

Count 2

3.  At about 21:53 hours on 28 October 2014, a team of police officers conducting a surveillance operation in the vicinity of Hing Cheung House, Tai Hing Estate in Tuen Mun, New Territories, intercepted the applicant together with Mr Kwok Chi-hung (“Kwok”) and another person.  A search of Kwok revealed in his right hand a large re-sealable plastic bag wrapped by a piece of white tissue paper, inside of which were 10 small transparent re-sealable plastic bags containing suspected dangerous drugs.  A Government Chemist later confirmed the contents to be 24.17 grammes of Ice narcotic.

4.  Kwok and the applicant were, after enquiries, arrested for trafficking in a dangerous drug.  The applicant remained silent under caution, but Kwok made a statement to police.  The retail value of the Ice was about HK$11,555.

5.  Following her remand in custody, the applicant was subsequently released on 11 December 2014 and her charge was withdrawn. However, she was re-arrested on 5 October 2015 and subsequently charged with Count 2, and later with Count 1.

6.  On 7 August 2015, Kwok pleaded guilty to the above offence (in separate proceedings) and, on 29 September 2015, was sentenced to 4 years and 3 months’ imprisonment.  He gave evidence against the applicant as PW1 under an immunity from prosecution[1].

7.  Kwok testified that on 28 October 2014, the applicant had met up with him near Hing Cheung House in Tai Hing Estate to give him 3.5 grammes of Ice, which she owed him from an earlier order he had made (see Count 1 below).  When he met the applicant, she pointed to a something covered by a tissue next to the rubbish bin and told him, “The stuff is there”, whereupon he picked it up.  As they walked away together, the applicant again told him that his portion of the drugs were inside (namely 3.5 grammes), and that he was to return the remainder to her.  The applicant, Kwok and the other person were then intercepted and arrested.

8.  The arresting officer of the applicant also gave evidence that he had seen the applicant pointing at the ground near the rubbish bin before Kwok picked up the tissue packet and its contents.

Count 1

9.  Kwok gave evidence that two days before he was arrested, namely, on 26 October 2014, he had asked to buy 7 grammes of Ice from the applicant for HK$1,400.  Kwok was accordingly instructed by the applicant to deposit HK$600 into a named bank account, which he did.  The two then met at the X Amusement Game Centre in Yuen Long on the same day and Kwok gave the applicant a further HK$800 in cash.  Thereupon, the applicant gave him 3.5 grammes of Ice, and said she would give him the remaining 3.5 grammes later.

10.  Kwok claimed that he consumed the Ice over the course of the following two days.  As a result, no drugs, the subject matter of Count 1, were produced at trial.

11.  Mr Wong Ka-shing, May (“Wong”), held a bank account with Bank of China, in which a sum of HK$600 was deposited on 26 October 2014 and withdrawn in cash shortly thereafter on the same day[2].  Wong gave evidence that the applicant had told him her friend would deposit some money into his account, which he was to give back to the applicant.  Wong had previous convictions and had been to prison for trafficking in dangerous drugs.  He had known the applicant for around 9 months, but had known Kwok for about 2 years.

SMS messages

12.  The following SMS records from the applicant’s mobile telephone were admitted during the trial[3]:

Date	Time	Sender	Recipient	Message
28/10/2014	20:45:53	Kwok	Defendant[4]	“Call me back”
28/10/2014	20:48:31	Unknown	Defendant	“I don’t want you in trouble.  Don’t pick (it) up”
28/10/2014	20:56:14	Defendant	Kwok	“Are you driving? If so, come over to Tai Hing and I’ll give you back the stuff.”
28/10/2014	20:56:57	Kwok	Defendant	“Coming now”
28/10/2014	20:58:33	Defendant	Unknown	“I’ve asked Ah Kwok to come over and pick (it) up and (I’ll) give him back three point five.”

It is noteworthy that less than an hour after the sending of the last SMS message, the applicant, Kwok and the other person were intercepted by the police and Kwok found to be in possession of the dangerous drugs, the subject matter of Count 2.

The defence case

13.  The applicant did not give evidence at trial.  The defence case as presented through cross-examination and submissions at trial was that the applicant was never involved in any drug transactions with Kwok. However, it should be noted that no positive case was put to Kwok to explain the SMS messages, or his presence with the applicant in the vicinity of Hing Cheung House, at the time of his interception.

14.  It was suggested to Kwok in cross-examination that he had been lying in order to get a reduced sentence of imprisonment, and also to protect his wife, who was the other person arrested at the scene.  It was also argued before the jury that Kwok was unbelievable because he had made allegations against police officers during a voir dire at his own trial, which allegations the police officers denied[5]; and there were other inconsistencies between his evidence and that of the police officers at the scene.  The fact that the applicant had been charged and later released on Count 2 was relied upon to suggest that the police did not have sufficient evidence against her until Kwok indicated he was willing to testify[6].  Furthermore, the surveillance police officers had not seen the applicant putting anything next to the rubbish bin[7]; accordingly, there was no evidence that she had ever touched the tissue packet[8].

15.  The defence challenged Kwok’s version that the applicant would leave a large packet of Ice lying around in open view, and argued that it was not necessary to give more than 24 grammes of Ice to Kwok, when he was only owed 3.5 grammes[9]; with the attendant risk of getting caught in public with a much larger amount than he required.  It was also contended that, if Kwok’s evidence were accepted, the applicant would have been selling the Ice at less than half its market value.

16.  The defence also sought to suggest that Wong was closer to Kwok than to the applicant, which may have explained why he had given evidence against the applicant.

17.  Of Count 1, it was submitted that there was no objective evidence of what had allegedly happened on 26 October 2014, nor were any drugs found or produced.  The prosecution case on this count hinged entirely on Kwok’s assertions.  Finally, defence counsel argued that Counts 1 and 2 should stand and fall together, since they both essentially relied on Kwok’s evidence[10].

The summing-up

18.  In her summing-up, the judge directed the jury that the main issue in the case was the credibility of Kwok.  The jury were expressly told that Kwok’s guilty plea had no bearing on their decision in the applicant’s case.  They were directed to consider the two counts against the applicant separately, since “the evidence concerning each count is different, and therefore your verdicts do not necessarily have to be the same”.  Of Kwok’s evidence, they were told that they could accept or reject all or some of his account, but expressly warned that if they rejected some of what he claimed, they “should then approach the remaining evidence with caution and satisfy yourself that it is reliable”.  The judge then went through the elements required to be proved for the offence of trafficking.

19.  The judge specifically told the jury to “exercise particular care in considering (Kwok’s) evidence”, that they “should approach Kwok’s evidence with caution”, and that it would be “wise to look for evidence which is supportive of Kwok before you act on his evidence”.  In that regard, she cited Kwok’s previous convictions, the inconsistencies between his evidence and that of the police in respect of his treatment whilst in custody, the fact that Kwok could expect to receive an additional reduction of his sentence for giving significant assistance to the police or giving evidence against a co-accused and that he was giving evidence under an immunity.  She concluded:

“These are matters which you should take into account in considering whether you find Kwok to be a credible and reliable witness. If you accept the evidence of Kwok as to the events, you will likely be satisfied that the prosecution has shown you that Kwok and the accused trafficked together in dangerous drugs on 28 October and the accused trafficked in drugs on 26 October. In that event, you will return a verdict of guilty on both charges. If you do not accept Kwok’s evidence, then there is no evidence upon which you will be entitled to convict the accused, and you will return a verdict of not guilty on both charges.”

Grounds of appeal against conviction

20.  Mr Andrew Raffell, on behalf of the applicant both before us and in the court below, argued three grounds of appeal, all of which hinge upon the way Kwok’s evidence was treated by the judge and the jury.  First, it is said that Counts 1 and 2 were closely connected in that the events giving rise to the allegation in Count 2 derived from an earlier set of events which gave rise to the allegation in Count 1 and were almost entirely dependent on Kwok’s account.  Accordingly, if the jury were not satisfied so that they were sure about Kwok’s evidence on Count 1, on which they acquitted, that uncertainty should logically have resulted in the applicant’s acquittal on Count 2 as well.  Thus, it was argued, the verdict on Count 2 was logically inconsistent with the verdict on Count 1.

21.  Secondly, it was submitted that the jury should have been clearly and unambiguously directed by the judge that if they had doubts about Kwok’s testimony on Count 1, they should acquit the applicant on Count 2.

22.  Thirdly, which is really an extension of the first ground, it was averred that since the conviction on Count 2 was based almost entirely on the testimony of Kwok, whose evidence on Count 1 they did not believe, there is a lurking doubt as to the correctness of the conviction on Count 2.

23.  In argument before us, Mr Raffell argued that the two verdicts ought to have been consistent with each other, since they each necessarily and essentially derived from Kwok’s account, which was not accepted by the jury in respect of Count 1.  Whilst he recognised that there was some supporting evidence in relation to Count 2, he submitted that it was not strong, otherwise the prosecution would not have released the applicant and withdrawn the charge against her for some 10 months before reinstating it. Ultimately, the conviction of the applicant on Count 2 depended on Kwok’s evidence, without which the evidence of the MSM messages was meaningless. Furthermore, Kwok’s account of what happened on 28 October followed on from his claims as to what had happened on 26 October 2014.  If the jury could not be satisfied so that they were sure about what he was saying in relation to ‘Part I’ of the story on 26 October, they could not be sure about ‘Part II’ on 28 October.  Hence the importance of a specific direction to that effect being given to the jury.

24.  In support of his grounds of appeal, Mr Raffell cited the decision in Wong Pui Sham v HKSAR[11]to advance the proposition that where the credibility of a crucial prosecution witness is in issue, an appellate court should consider whether any doubts it has about one conviction based on the witness’s evidence also impacted on any remaining conviction which was similarly dependent on that witness’ credibility.

25.  He further relied upon the decisions in R v Cooper (Sean)[12] and HKSAR v Ling Kam Wah[13] in relation to the lurking doubt principle.  He submitted that the weakness of the supporting evidence and Kwok’s lack of credibility should raise a lurking doubt as to the safety of the conviction on Count 2.

The respondent’s submissions

26.  Mr Eddie Sean, on behalf of the respondent, referred to the decision in HKSAR v Chan Kam Loi[14] and the Court’s emphasis on the burden which is upon an applicant on appeal to show that verdicts are inconsistent; namely, to demonstrate that there is no sensible explanation for the different verdicts, so that they should be regarded as unsafe and unsatisfactory.  It was submitted that the acquittal in Count 1 did not logically mean the jury should also have acquitted on Count 2, since there was other evidence plainly supportive of Kwok’s account on Count 2, whereas there was none on Count 1.  Further, unlike Count 2, there were no drugs produced in respect of Count 1, which meant that there was no scientific evidence adduced as to the weight and type of dangerous drug involved.

27.  Of Kwok’s credibility, Mr Sean points out that the judge reminded the jury on a number of occasions that they should treat his evidence with “caution” and “particular care”, and that “it is wise to look for evidence which is supportive of Kwok before you act on his evidence”.  The jury would, therefore, have been fully cognisant of the dangers of relying on Kwok’s evidence and his possible underlying motive; and would have assessed his evidence accordingly.

28.  In the circumstances, it was not necessary for the judge to direct the jury that if they had any doubts about Kwok’s testimony on Count 1, they should also acquit on Count 2, because the judge had repeatedly reminded the jury to treat Kwok’s evidence with circumspection.  As a result, Mr Sean averred that the conviction was neither unsafe nor unsatisfactory, that there was no lurking doubt arising from the conviction, and that leave to appeal should be refused.

Consideration

29.  The principles upon which appellate courts should approach complaints of inconsistency of verdicts have been distilled in HKSAR v Chan Kam Loi, at para’s 48 to 52:

“48. The legal principles relevant to this ground of appeal are well settled. In HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 Stock JA (as he then was) summarised the law at pages 801-802, paragraph 18:

“It is well established that when such a complaint is raised, the burden is upon the applicant to show, first, that the verdicts are inconsistent and, if so, that they are so inconsistent as to call for interference by the appellate tribunal, in other words that “there is no way in which the logically inconsistent verdicts can sensibly be explained”: R v Clarke & Fletcher (unrep., English Court of Appeal, 30 July 1996). See also R v Durante [1972] 1 WLR 1612, and HKSAR v Chan Kai Lam (unrep., CACC 311/2003, [2004] HKEC 1246).”

The ultimate question is whether the verdicts are unsafe and unsatisfactory^[15] and that is why inconsistency alone may not be enough to lead to the setting aside of the jury’s verdict and why the appellate court looks to whether there is a sensible explanation for the jury’s verdicts. It is only in the absence of such an explanation that the verdicts become verdicts which no reasonable jury applying their minds properly to the facts of the case could have reached.

49. In determining whether the jury’s verdicts can sensibly be explained, sight should not be lost of the reality that juries not only form their own views on the credibility of the witnesses they have heard but also on the justice of the case.

50. On the former issue, the Court of Appeal in HKSAR v Li King Sing Ivan [2001] 2 HKC 539 at page 546H referred with approval to the following comments by the English Court of Appeal:

“… the English Court of Appeal held in R v Van der Molen [1997] Crim LR 604 at 605 that:

‘… it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count. The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.’

In the following year, in R v G [1998] Crim LR 482, the English Court of Appeal held that:

‘A person’s credibility is not a seamless robe, any more than is their reliability.  The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts.  It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument).  It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.’ ”

51.   On the latter issue of forming a view on the justice of the case, the Court of Appeal referred to comments by King CJ of the South Australian Supreme Court in R v Kirkman (1987) 44 SASR 591, which it noted had been adopted and followed by the High Court of Australia in R v Mackenzie (1996) 90 A Crim R 468 at 483.  At page 593 King CJ said:

“Juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of the law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting them of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts should therefore not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

These words serve to remind us that juries sometimes act in accordance with their own sense of justice rather than one dictated by inexorably following a purely logical course.

52. Consequently, the full depth of the wisdom of the jury may not always be fathomable but that does not mean that the jury have acted irrationally or illogically.  Appropriate respect must be accorded the verdict of the jury and appellate courts should not readily assume that no sensible explanation exists for what, at a superficial level, may appear to be inconsistent verdicts.”

30.  Looking at the facts of this case in the light of those principles, we cannot accept that there was any real inconsistency between the acquittal on Count 1 and the conviction on Count 2.  As the judge rightly directed the jury, and as we think Mr Raffell was minded to acknowledge, there was some evidence which would have constituted supporting evidence of Kwok’s account on Count 2.

31.  First and foremost, there were the admitted SMS messages between the applicant and Kwok and, in particular, the rather devastating final message at 20:58:33 hours on 28 October 2014 from the applicant’s mobile telephone to an unknown recipient, namely “I’ve asked Ah Kwok to come over and pick (it) up and (I’ll) give him back three point five”; a message which was sent 55 minutes before the applicant, Kwok and the other person were intercepted by the police and the drugs seized from Kwok’s possession. The SMS messages were plainly supportive of Kwok’s testimony, and no other interpretation of their content was put in evidence before the jury.  Indeed, although it is not necessary to go this far, we think that the last message from the applicant to an unknown recipient would have amounted to ‘corroboration’ evidence in its classic, legal sense.

32.  Secondly, there was evidence from the arresting officer that he saw the applicant point at the ground near the rubbish bin shortly before Kwok picked the drugs up.  Kwok’s evidence had been that the applicant pointed at a white tissue on the ground next to a rubbish bin and told him to pick it up because the drugs were there.

33.  Thirdly, there was the testimony of Wong that the applicant had told him that a friend had deposited $600 into his account on 26 October 2014, and that he and the applicant had subsequently gone on the same day to withdraw $600 from an ATM machine.  It is true that this particular piece of evidence also provided some support for Kwok’s account of events on 26 October, as well as on 28 October 2014.  However, the other two pieces of evidence provided direct support for Kwok’s account of events on 28 October 2014 alone.

34.  Thus, there was clear, and rather telling, evidence to support Kwok’s account of events in respect of Count 2.  Coupled with the fact that there were no drugs produced in respect of Count 1, and therefore no accompanying scientific evidence in respect of what Kwok said he received from the applicant on 26 October, we think that rather than being inconsistent in their approach to the evidence on the two counts, the jury were being scrupulously careful and mindful of the judge’s directions.  In our judgment, the verdicts are entirely consistent with a strict application of the burden and standard of proof to the available evidence on each count viewed separately, and thereby readily understandable.  This ground is untenable.

35.  It follows that there was no warrant for the judge giving the direction contended for by Mr Raffell.  Indeed, she would have been wrong to have given such a direction in the circumstances, for it would have been in danger of usurping the function of the jury in assessing the relative evidence on each count and an unnecessary departure from the specimen direction in relation to the separate consideration of counts on the indictment, which she rightly gave[16]. There is nothing in this second ground of appeal.

36.  It also follows from our resolution of the first ground of appeal that there is no residual room for a lurking doubt argument. Kwok’s evidence was before the jury with all its frailties and dangers properly and fairly confronted by the judge in her summing-up.  It was a matter for the jury as to whether, despite those concerns, they believed Kwok to the high standard required before they could convict.  On Count 1, in the absence of any drugs, and despite some supporting evidence for Kwok’s claims about payment, they were not prepared to believe him to the high standard expected in a criminal trial: on Count 2, with the seizure of actual drugs, the evidence of the police surveillance officers and cogent supporting evidence of the contemporaneous exchange of SMS messages to which we have referred, they were prepared to believe him.  This Court does not have any lurking doubt about the jury’s verdict on Count 2.

37.  For the same reasons, we do not see the relevance of the principle in Wong Pui Sham v HKSAR to the circumstances of this case.  This Court sees no reason to doubt the jury’s verdict on Count 2 based on Kwok’s evidence, supported as it was in the way we have described, and does not consider that the verdict was materially impacted by the acquittal on Count 1, where Kwok’s evidence was not so supported.

38.  For these reasons, the application for leave to appeal against conviction was refused.

[1] In respect of Count 1.

[2] Admitted Facts, para 21; Appeal bundle, p XIV.

[3] Further Admitted Facts, para 3; Appeal Bundle, p XVI.

[4] The applicant.

[5] D’s Closing Speech, Appeal Bundle, pp 97M-O; 105N-106V.

[6] D’s Closing Speech, Appeal Bundle, p 87P-S.

[7] D’s Closing Speech, Appeal Bundle, pp 89U-90B.

[8] D’s Closing Speech, Appeal Bundle, p 90E.

[9] D’s Closing Speech, Appeal Bundle, p 92E-M.

[10] D’s Closing Speech, Appeal Bundle, p 111A-D.

[11] [2001] 1 HKLRD 74.

[12] [1969] 1 QB 267.

[13] (unrep., CACC 88/2001, 7 February 2002).

[14] (unrep., CACC 410/2012, 30 January 2014).

[15] See Keith JA in HKSAR v Sham Ying Kit [2001] 1 HKLRD 52 where he said at page 61 D-F:

“Inconsistencies in verdicts do not necessarily result in convictions based on those verdicts being quashed.  That is because (once one leaves aside erroneous rulings of law and material irregularities in the course of the trial) an appeal against conviction can only be allowed, and the conviction can only be quashed, if the conviction is ‘unsafe or unsatisfactory’: see s 83(1)(a) of the Criminal Procedure Ordinance (Cap 221).  Verdicts which are inconsistent with each other may, and usually will, result in one or more of the verdicts being set aside, but in the final analysis inconsistencies in verdicts are no more than a factor to be taken into account in determining whether the convictions based on them are unsafe or unsatisfactory.”

[16] See para 18 above.