HKSAR v. CHAU PETER

CACC 398/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2009

(ON APPEAL FROM HCCC NO. 142 OF 2009)

________________________

BETWEEN

________________________

______________________

J U D G M E N T

______________________

Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 10 November 2009, following a trial in the Court of First Instance before Deputy High Court Judge Geiser and a jury, the applicant was convicted of one charge of trafficking in dangerous drugs and sentenced for that offence to a term of six years’ imprisonment.  The drugs in question consisted of 8.91 grammes of a crystalline solid containing 8.81 grammes of methamphetamine hydrochloride, commonly called ‘ice’, and 38 tablets, together with the fragments of two further tablets, of midazolam.  The applicant now seeks leave to appeal his conviction.

2.  Mr Donald, who represented the applicant at trial, has advanced two grounds of appeal.

3.  First, it is submitted that, although on the evidence it was open to the jury to convict the applicant of the lesser offence of possession of the drugs for personal consumption, the judge failed to direct the jury in that regard, that failure constituting a material misdirection.

4.  Second, it is submitted that, in light of the fact that, although the fingerprints of two other persons were identified, no fingerprints of the applicant were found on the box containing the drugs and other paraphernalia, or on the contents themselves, it was incumbent on the judge to direct the jury as to the significance of that lack of evidence against the applicant.  The judge, however, failed adequately to do so.

Background

5.  In the early hours of the morning of 11 December 2008, the applicant travelled to the Mainland via the Lok Ma Chau Control Point.  He returned approximately an hour and a half later and went to the place where he was living, a room in a residential building in Mongkok.

6.  Later that same day, at about 1.30 in the afternoon, police entered the room.  The applicant was there together with a woman named Law Wai Chun.  The applicant described Law as his girlfriend although Law herself, when she testified for the defence, said that the relationship had not developed that far.

7.  It was the prosecution case that, when the room was searched, a small box was found under a cushion on the bed.  The box, designed as a presentation box for a watch, had a paper sleeve around it.  Inside the box, the following items containing the drugs described in the indictment were found.  First, nine transparent plastic bags containing a total of 37 plastic packets, each of those packets and one bag containing ice.  Second, one plastic bag containing the midazolam pills.  It was agreed that the retail value, that is, the street value, of the drugs was a little over $8,000.  Other items found in the box consisted of the following: one electronic scale, a quantity of empty plastic bags and plastic packets and two bundles of drinking straws.

8.  Forensic examination of the box and its paper sleeve revealed the fingerprints of two persons, a man by the name of Hui Hoi Pan and a further man by the name of Li Ka Chun.  No fingerprints of the applicant were identified.

9.  It should also be said that two swabs were taken but they revealed no traces of human DNA.

10.  It was the prosecution case that, after the discovery of the drugs inside the box, the applicant was arrested and cautioned.  In response to the caution, the applicant said: “Ah sir, I consume the ice and blue stuff myself.  It has nothing to do with my chick.”  A statement to this effect was recorded in the notebook of the arresting officer, the applicant putting his signature to that record.

11.  That evening, at the Mongkok Police Station, the applicant was interviewed under caution.  The interview was video-recorded.  In that interview, the applicant said that the box containing the drugs and paraphernalia had been left with him by a friend named Kam Mo Kit.  The applicant admitted that he had seen the contents of the box and knew that it contained dangerous drugs that were intended, as far as he could see, for sale. However, because at that time he was in financial difficulties, he agreed to look after the box for a period of a week for a sum of $50 per day.

12.  In the course of the video-recorded interview, the applicant denied that the drugs had been for his own consumption.  He had made that claim, he said, because he did not want to disclose that a third party had left the drugs with him and because he was also afraid that the police might implicate his girlfriend, Law.

13.  At trial, the applicant chose to give evidence.  He testified that he had been to the Mainland in the early hours of the morning of 11 December 2008 to see if a friend could arrange a job for him.  He said that, when he got back to his room in Mongkok, he was visited by two friends, Wong Siu Fong and Hui Hoi Pan.  Hui, he said, had left a number of items with him for storage while he moved house.  It was a fingerprint of Hui which was identified on the paper sleeve around the box.  The applicant said that, after his two friends had left, Law came to see him.

14.  The applicant testified that, when the police demanded entry to his room, he was taking a shower and Law opened the door on his behalf.  He was ordered out of the shower so that he could dress.  He was then handcuffed.  The police wished to know where was the “stuff”.  The applicant testified that he did not know what they were talking about.  He was then taken to another room on the same floor of the building and, while there, he heard an officer exclaim that “the stuff” had been found.

15.  The applicant said that he was then taken back to his room and shown the contents of the box, being asked what it was.  When he replied that he did not know, he was subjected to physical violence by two of the officers who demanded that he look again and this time identify the contents.  It was only then, said the applicant, that he tentatively identified the drugs as possibly being “ice” and “blue stuff”.  He was told that, if he denied that the drugs were his, his girlfriend would be charged.  The applicant testified that, to protect her from being falsely implicated, he told the police to treat the drugs as his.  The applicant said that he did not sign the post record of this admission at the scene of his arrest but only later at the Mongkok Police Station after he had been assured that there would be no problem with Law’s bail.

16.  The applicant further testified that, prior to the video-recorded interview, he was told by the police what he must say, namely, that he was acting as a storekeeper for somebody else's drugs.  The applicant said that he went along with this because he feared for his own safety and was also concerned that, if he did not, Law may still be implicated.

17.  In summary, at trial it was the applicant’s case that he knew nothing of the drugs nor where, if at all, they might have been hidden in his room.  The admissions made by him, whether at the scene of arrest or later during the course of the video-recorded interview, had not represented the truth and had only been made because he had been subjected to undue pressure by the police.

The first ground of appeal

18.  In reaching its verdict of guilty, the jury rejected the applicant’s testimony that he knew nothing of the drugs.  It was integral to the verdict that he was at that time in possession of them.

19.  In the course of the video-recorded interview made on the evening of his arrest, the applicant said that the box containing the drugs and other paraphernalia had been left in his care by a friend.  He admitted that he knew the nature of the contents of the box but agreed to act as a custodian because he was in financial difficulties.  In directing the jury, the judge said that, if they accepted this explanation as true, then the applicant would be guilty of trafficking.

20.  But, as Mr Donald has pointed out, this explanation was not the only one made by the applicant.  It was one of two explanations.  There was the earlier one, indeed the one made at the very time of the applicant’s arrest.  This original explanation was to the effect that the drugs were in the possession of the applicant because he intended to ingest then himself.  If the jury found that this original explanation may have been true then it would have been incumbent on the jury to find the applicant not guilty of trafficking and guilty only of the lesser and alternative offence of simple possession.

21.  That alternative, however, although specifically raised by counsel with the trial judge and considered by him, was not put to the jury.  As the judge informed counsel, having considered the issue, he was satisfied that it was “trafficking or nothing”.

22.  The principles to be applied by a trial judge in cases of this kind have been definitively stated by the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.

23.  The basic principle is that the judge in a criminal trial is under a duty to place before the jury all possible alternatives which are open to them on the evidence.  He is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused: see para 12 of the judgment.

24.  The reason this duty is imposed is because it is in the public interest that an accused charged with an offence is properly dealt with according to the law.  He should be convicted of, but only of, an offence which is proved to have been committed by him: see para 13 of the judgment.  In this latter regard, the Court of Final Appeal adopted the following observations of Lord Bingham in R v Coutts [2006] 1 WLR 2154, at 2159:

“The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge…”

25.  The basic principle, of course, is to be exercised within parameters that meet the ends of justice.  In this regard, the Court of Final Appeal directed that not every possible alternative, however inconsistent with or unsupported by the evidence, has to be placed before the jury.  An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on that alternative: see para 14.

26.  That being the case, the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict: see para 15.

27.  If, however, in respect of an alternative verdict, there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to direct the duty as to that alternative verdict.  The threshold is a low one, this being consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt: see para 15.

28.  In the present case, the primary issue was whether the applicant had been in possession of the drugs.  The defence was mounted on the basis that the applicant knew nothing of the drugs and had never therefore been in possession of them.

29.  However, once it was determined by the jury that the applicant had been in possession of them, as the jury did in this case, then the purpose for which he possessed them became not merely a live issue but an essential one.  On the directions given to the jury, unless they were satisfied that the drugs were in the possession of the applicant for the purpose of trafficking, the applicant was entitled to be acquitted.  That was the stark choice presented to the jury.  This was so even though the only evidence as to purpose came from admissions made against interest by the applicant after he had been arrested and even though the first such admission had been to the effect that the drugs had been intended for his own consumption.

30.  The applicant had, of course, gone back on his initial admission in the video-recorded interview made later that same day, making a further but different admission.  But in his testimony, the applicant had said that both those admissions had been untrue.  There was no evidence from him therefore to say that the second admission should be preferred over the first or the first over the second.

31.  When looking to the issue of the purpose for which the drugs were held, it was therefore for the jury to come to a determination based on all the evidence and that evidence presented two options.  Either, as the applicant initially said, the drugs were for his own consumption or, as he said later, he was holding them as a paid custodian and was therefore trafficking in them.

32.  Was the first option a fanciful one, that is, one so tenuous that no reasonable jury could have accepted it?  We do not think so.

33.  First, whatever his later equivocation, when first presented with the drugs, there was evidence that the applicant had protested that they were for his own consumption.

34.  Second, the quantity of drugs involved was not so high as to render that explanation inherently unlikely.  There was less than 9 grammes of ice and some 38 midazolam pills, the total street value, as we have said, being assessed at a little over $8,000.  As the judge made clear to the jury, if the drugs were the stash for a trafficking operation then it was a very low-level operation:

“With regard to the value of the drugs being slightly over $8000, the inspector confirmed that if the trafficker was a mid-level trafficker, it would not be much, but if at street level, he said that was not minimal.”

35.  Third, while the drugs had been separated into a number of packets that of itself could not be conclusive; separation of that kind being one manner in which an addict may wish to ensure a regular dosage.

36.  In our judgment, while it is idle to speculate what decision the jury would have reached, the lesser alternative verdict of simple possession was one that was raised on the evidence and should therefore have been left to the jury.  The failure to do so constituted a material misdirection and on this ground the conviction must be quashed.

The second ground of appeal

37.  It was an admitted fact at trial that, although the fingerprints of two identified persons were found on the box containing the drugs and other paraphernalia or on its paper sleeve, no fingerprints of the applicant were identified.  It was a further admitted fact that no human DNA had been detected on two cotton swabs taken from inside the room where the drugs were found.  In the course of his summing-up, the judge reminded the jury of this:

“The officer did, however, agree, members of the jury, to the fact that none of the defendant’s fingerprints or DNA appeared on any of the drugs, the packaging, the Seiko box, the straws and electronic scales. Indeed, on the Seiko box, members of the jury, you know that the fingerprints of two other people, a Hui Hoi Pan and Li Ka Chun, were found…”

38.  However, the judge also reminded the jury of the evidence of two experts, the first expert speaking of the fact that an absence of a person’s fingerprints on an object does not necessarily mean that the person has not touched it and the second expert speaking to the same effect in respect of an absence of DNA.

39.  In respect of the evidence of the fingerprint expert, the judge directed the jury in the following terms:

“…that if a person’s prints cannot be found on an object, this does not necessarily mean that the person has not touched it. Generally, she said that if a person has contact with an object, his prints will be left but many factors, she said, may affect the result as to whether a print would be left on an object. She gave examples. You will recall she said that, due to the movements of the hand, the prints may be smudged… She said there may be insufficient contact area resulting, therefore, in insufficient detail for identification. Also, prints may overlap making identification of individual prints difficult. And sometimes people, she said, had insufficient sweat deposits, making it difficult to leave prints on the surface of an object.

…

With regard to the Seiko watch box … the witness said in cross examination that there had been evidence of superimposition of fingerprints, making identification difficult.  However, in relation to both items [the box and its paper sleeve], the evidence of this witness was that the defendant’s fingerprints did not appear … but that the prints of two other suspects, that is Hui Hoi Pan and Li Ka Chun, were found.”

40.  The judge’s directions to the jury concerning the evidence of the DNA expert were more brief but to the same effect.

41.  The directions were therefore neutral; the judge did not attempt to diminish the value of the lack of fingerprint and DNA evidence nor to boost it.  He did no more than put it into context, namely, that the absence of such forensic evidence could not of itself be conclusive.  What the jury was to make of the forensic evidence in the light of that qualification was a matter for them.

42.  Mr Donald, for the applicant, has objected to what he has described as the failure of the judge to give more assistance to the jury in respect of this issue.  He has complained that the absence of forensic evidence was very much in favour of the applicant and the judge should have directed the jury accordingly.

43.  We do not agree.  The evidential issue was not a difficult one.  The jury could not have failed to understand the import of the lack of the applicant’s fingerprints and his DNA.  It was clearly evidence in his favour, the more so the lack of fingerprint evidence.  But it was not conclusive.  It was therefore to be taken into account along with all the other evidence and given such weight as the jury best determined.

44.  Directions of the kind criticised by Mr Donald are fashioned according to the differing evidential circumstances of each trial.  In the present case, it seems to us that it was a perfectly proper course for the judge to take to limit his directions in the manner he did.  The summing-up was neither deficient nor prejudicial.  We find nothing in this ground.

Conclusion

45.  That being said, having found that the failure to leave the lesser alternative verdict of simple possession to the jury constituted a material misdirection, we grant leave to appeal and, treating this hearing as the hearing of the appeal itself, we quash the conviction.

Retrial

46.  Counsel for the respondent has sought a retrial. Mr Donald has not opposed that application.

47.  This Court may order a retrial if, in its opinion, the interests of justice so require.  The public interest is served by the prosecution of those reasonably suspected on the available evidence of serious criminal conduct provided it does not result in any unfairness or oppression to an accused.

48.  In the present case, there was a substantial body of evidence against the applicant.  That evidence was limited to police officers and to forensic experts in the employ of the Government.  The original trial was a short one and there is no reason to think that a retrial will not itself be relatively short.

49.  The applicant has been in custody since 11 December 2008, a period of 20 months.  However, when considering the period already served by him, it must be borne in mind that, at the time he was sentenced to a term of six years’ imprisonment for the offence of trafficking in dangerous drugs, he was also sentenced to a term of two years and eight months’ imprisonment for an offence of possessing false instruments, namely, forged credit cards, the applicant having pleaded guilty to that offence.  At the time of sentencing, the judge ordered that 20 months of the sentence imposed for possessing false instruments was to run consecutively with the sentence imposed for trafficking in dangerous drugs.  In the result, therefore, the time already served by the applicant, indeed the time he is presently serving, has been in respect of another, entirely independent offence.

50.  Taking these and other relevant matters into account, we are of the view that the concession made by Mr Donald was a proper one.  A retrial is ordered.