HKSAR v. LAM CHIU MO

CACC 206 /2018

[2019] HKCA 911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMININAL APPEAL NO 206 OF 2018

(ON APPEAL FROM HCCC NO 349 OF 2017)

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J U D G M E N T

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1.  On 16 July 2018, the applicant was unanimously convicted after trial before Deputy Judge Bruce (“the judge”) and a jury of two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The 1^st count involved a narcotic content of 15.1 grammes of cocaine, while the 2^nd count involved a narcotic content of 166.2 grammes of cocaine. He was sentenced to a total of 11 years and 2 months’ imprisonment. By a Notice of Application for Leave to Appeal (Form XI) filed on 26 July 2018, the applicant seeks leave to appeal against conviction only.

The prosecution case

2.  On the night of 28 April 2017, a team of Customs and Excise officers were on anti-narcotics duty in Tai Kok Tsui, Kowloon.  Two members of the team (PW1 and PW2) were in an unmarked police vehicle.  They saw a private car (JY384) parked outside the Metro Harbour View Shopping Mall in Tai Kok Tsui.  A man in a white top walked to the passenger side of JY384, put his hand inside the car and then walked away.  Customs officers suspected that there had been a drug transaction.  PW2 followed the man but lost sight of him and returned to the unmarked car. 

3.  JY384 later drove off, followed by PW1 and PW2 in the unmarked police vehicle.  JY384 eventually arrived and parked at 1123 Canton Road in Mongkok.  The unmarked police vehicle pulled up behind JY384.  PW1 approached the driver of the private car, who was found to be the applicant.

4.  Upon conducting a search of JY384, PW1 found in the right-hand driver’s side compartment a clump of white tissue wrapped around a zip‑lock bag, which contained a white substance.  The white substance was subsequently found to be 15.9 grammes of a solid containing 15.1 grammes of cocaine (the subject-matter of the 1^st count).  PW1 further found 6 mobile telephones and 16 SIM cards and memory cards.

5.  PW1 testified that, under arrest and caution, and in answers to questions as to what the white substance was and to whom it belonged, the applicant said “I do not know”, and indicated that he would not answer any questions^[1]. The applicant would not say where he lived, as a result of which a Customs officer obtained his home address in Tuen Mun from his vehicle registration number.  He was then taken to his home for a search.

6.  A search of the flat was conducted by PW1 and PW3.  In the kitchen, PW1 found in a cupboard two plastic containers containing what he described as “white powder”.  The “white powder” was duly photographed (Exhibit P61).  The prosecution alleged that the substance was 176.2 grammes of a solid containing 166.2 grammes of cocaine (the subject-matter of the 2^nd count).  Apparatus used for taking dangerous drugs was found to the right of the washbasin^[2].  PW1 also found a substantial number of bags of three different types and some electronic scales^[3].

7.  When asked by PW1 under caution what the “white powder” in the cupboard was, the applicant responded that he did not know and would not answer[4]. PW2’s evidence was that the applicant was present when the drugs in the kitchen were found[5].

8.  The drugs and other exhibits seized in the case were handed to PW3, the exhibits officer, who testified that he did not otherwise tamper with them.  Nor did the assistant exhibits officer, who had custody of the drugs for some 3 hours, tamper with them.  The drugs (from both the private car and the flat) were packed into sealed exhibits envelopes and later delivered to the Government Chemist, who subsequently confirmed that they were cocaine.  As the applicant refused to sign on the exhibits envelopes, SCO Chan signed on them.

9.  The retail value of the cocaine was agreed by way of an admitted fact to be $154,000[6]. It was also agreed, among other things, that the applicant’s thumbprint was found on the inner side of the cover of one of the plastic containers containing the dangerous drugs (Exhibit P6) found in the kitchen[7].

The defence case

10.  The applicant gave evidence but did not call any other witness.  His case was that he was not in possession of the dangerous drugs.  They had been planted by the team of Customs officers. 

11.  The applicant had come across this same team of Customs officers earlier, in about May 2016.  They had stopped him and wanted to search him whilst on patrol in Jordan, but he objected at the time and was uncooperative to the point that there was a fight and he asked a nearby watchman to make a report to the police^[8]. As a result, it was alleged that this particular team held a grudge against the applicant, who had then become a “targeted person”^[9].  They had planted the dangerous drugs on him.

12.  The prosecution witnesses accepted that their team did have an encounter with the applicant in 2016, though there was a substantial difference between the officers as to their recollection of the event^[10].  They agreed that he had become difficult and complained^[11], but denied any misconduct and disagreed that the applicant had become a “targeted person”.

13.  In respect of events on 28 April 2017, the applicant said that he was deliberately kept away from his car when it was searched in Canton Road. He was not, therefore, in a position to see the search.  The substance allegedly found was simply produced by a Customs officer^[12].

14.  As for the dangerous drugs allegedly found in the flat, the applicant said he was kept in the lounge and was, again, unable to see the search^[13].  The officers went to various places in the premises.  The applicant said that the two containers in the kitchen, allegedly containing drugs, in fact contained corn starch used for deep-frying meat^[14]. He said the Customs officers showed him the corn starch, for which the dangerous drugs were later substituted.

15.  In addition to the seizure of dangerous drugs, the defence case was that the officers misconducted themselves and lied about a multitude of other matters.  PW2’s efforts in allegedly following the man in a white top in Tai Kok Tsui was challenged.  At Canton Road, the applicant said that the officers’ unmarked police vehicle, instead of pulling up behind JY384, had in fact cut in front of it at an angle.  During the search of the flat, allegations were made of substantial violence exerted on the applicant after one of his toilet breaks.  There were also allegations of inappropriate strip-searches at Customs and Excise Headquarters, delay in arranging medical attention for the applicant, and improperly influencing the doctor so that a medical report would understate his injuries.  The defence contended that the prosecution witnesses were thoroughly dishonest and unreliable.

The summing-up

16.  It will be helpful if I set out the judge’s directions to the jury relevant to the specific grounds of appeal advanced.  On the subject of inferences, having explained the general concept and given a simple example unconnected to the case, the judge gave the following direction:

“Some parts of the prosecution case… do depend on you drawing inferences…

For example, on the assumption – and it is just an assumption for the moment, it is an issue in the case – you found that the substance in the car of the accused and the substance in the plastic containers in the cupboard in the kitchen was in fact cocaine, just assume that for a moment, and there is no direct evidence such as an admission by the accused that he was in possession of the dangerous drug, the prosecution actually ask you to draw the inference from those proved facts that he was in possession. Now, as I keep saying, remember for this example I am making an assumption and I know you are with me on that.

If you found that to be proved; that the substance was cocaine and you found that it was in the driver’s side storage area, then it would be open to you to infer that he was in possession… You could come to that conclusion…”^[15](italics added)

17.  In dealing with the applicant’s evidence that the officers’ vehicle had cut in front of JY384 instead of pulling up behind it in Canton Road, the judge stated:

“… the position of the accused is the officers did not quietly pull up behind the vehicle but rather in the style of some of those pretty ordinary police dramas that sometimes we may have watched and sometimes see on TV or in movies. They sounded their horn and cut in front of the accused at something in the order of a 45-degree angle and stopped his vehicle. That is something that you may or may not think very important.”^[16](italics added).

18.  In dealing with the answers given by the applicant under caution upon his arrest in Canton Road, the judge said:

“Customs Officer 07341… then asked the accused what was the white powder and here is where the fun and games start.  The officer said in response the accused said, “I do not know”…

Now, as you know, the version given on behalf of the accused is different… he said… words to the effect, “Will not answer”, rather than, “I do not know”.”^[17](italics added)

On the second day of the summing-up, the judge directed the jury in these terms:

“Now, I directed you specifically on “Won’t answer” that is an exercise of the right to silence in terms and that is easy and clear. But on a little bit more careful thought about it, you might interpret --, ‘Well, I believe the Customs officer about that, he said, “Don’t know. Don’t know. Don’t know”, as you will recall from the evidence. That also could be, in effect, an exercise of the right of silence and I direct you that you should not hold that against him as well. So there it is.”[18]

19.  When referring to the applicant’s answer that he lived in Tuen Mun, the judge stated:

“he says that Senior Customs Officer Chan, who figures a large part in this story, said he [Chan] already knew the address anyway”^[19](italics added).

20.  The judge described the substance found in the flat as photographed in the reconstruction in Exhibit P61 as “white powder”.  He explained:

“… members of the jury, I am sure that you would understand at the moment I am using the language of the first prosecution witness, white powder, when I refer to the material he found as white powder. We know there is a controversy about that and I am simply just using that phrase for convenience and you should not infer from what I am saying that it was white powder. That issue is a live almost the issue of the case in use [sic], but do not be fooled or misled by my language. It is not meant to do that. You know there is a whole lot more to this issue than what I am saying at the moment.”^[20]

21.  On the difference between the officers’ memory of the encounter with the applicant in 2016, the judge stated:

“It may be that you come to the conclusion that with from [sic] your experience of human life it is hardly surprising that the ability of human beings to remember events which occurred some time ago varies significantly.”^[21]

Grounds of appeal

22.  Mr James Tze, with him Mr Tasman Tam, on behalf of the applicant, advance two grounds of appeal.  The 1^st ground avers that the judge’s summing-up was unfair and/or unbalanced.  The 2^nd ground is the general ground that the conviction is unsafe and unsatisfactory.  In making his complaint on the 1^st ground, the applicant took issue with the judge’s directions in the passages set out above (at paragraphs 16-21). 

23.  In respect of the assumption the judge made, when dealing with inferences, it was submitted that the judge had given the impression to the jury that they were to share this assumption that the substance found was in fact cocaine.

24.  It was effectively submitted that by comparing the applicant’s account of how he was stopped by the unmarked police vehicle in Canton Road with something the jury might have seen in film or on television, the judge was impliedly suggesting it was similarly fictional.

25.  As for the reference to “fun and games” in prefacing the account of the differences in the respective cases as to what was said by the applicant under caution at Canton Road, it is alleged that the applicant’s version of events was not credible and should not be taken seriously.  Similarly, the reference by the judge to the applicant’s “story” suggested that it was made up and untrue.

26.  It was Mr Tze’s further submission that the judge’s repeated equating of the “white lumpy substance” allegedly found with “white powder” undermined the defence case, which was that white powder and not the “white lumpy substance” depicted in Exhibit P61 was shown to him.

27.  Finally, it was submitted that the judge excused the prosecution witnesses’ ability to recall events but afforded no similar excuse for the defence evidence.

28.  Citing HKSAR v Lo Sing Lok[22], counsel characterised the judge’s references to a “story”, “police drama” and “fun and games” as sarcastic remarks which undermined the defence.  He submitted that a summing-up by a judge carried more weight than a closing address by counsel, and that each of the above impugned remarks and passages in the summing-up favoured the prosecution to the detriment of the defence.  Moreover, they could not be cured by standard directions. 

Respondent’s submissions

29.  Mr Bobby Cheung, on behalf of the respondent, submitted in response that the judge had made it very clear to the jury that he was only making an assumption for the purposes of illustrating the drawing of inferences.  He had made it plain that whether the substance found was in fact cocaine was an issue to be decided by the jury.  When, therefore, the judge stated “I know you are with me on that”, he was referring to the jury’s understanding that it was only an assumption for the purposes of illustrating the point.

30.  As for the reference to police dramas, it was submitted that however the applicant was intercepted in Canton Road was of little significance in the case.  Similarly, the applicant was reading too much into the reference to fun and games.  The applicant did not make any admissions and the judge correctly directed the jury that his answers did not add anything to the prosecution case, nor could any inference be drawn against the applicant.

31.  As for the reference to the applicant’s “story”, it was submitted that this was a neutral word.  It did not carry any connotation that the defence case was untrue.  The judge had also used the same word, in the sense of giving his “account”, when he told the jury that they may give credit to the applicant for going into the witness-box and subjecting himself to cross-examination^[23].

32.  In relation to the use of “white powder”, the judge had made it quite clear that he was using the phrase for convenience only and there could be no room for misunderstanding.  The judge reminded the jury that, apart from PW1, other officers did not describe the substance as “white powder”.

33.  In respect of the reference to the varying abilities of prosecution witnesses to remember, Mr Cheung submitted that it was nothing more than common sense.

34.  Overall, the respondent submitted that the judge approached his task in a neutral way and did not express any strong, personal views.  He properly reminded the jury that they were the only fact‑finders and left factual matters for them to decide.

Consideration

35.  All summings-up should be read as a whole.  The danger of focusing on an individual passage is that it can be artificially removed from the overall context and scheme of a summing-up and may give an impression or interpretation when read in isolation that is undeserved or unmerited.  When one reads this summing-up as a whole, it becomes clear that the judge was trying to help the jury in simple, sometimes layman’s, language to deal with the relevant issues which arose for their consideration.  Although I myself would not have used the expression “here is where the fun and games start”, simply because it is a rather colloquial idiom for a summing-up and perhaps risks, at least in its literal sense, introducing a slight note of flippancy into otherwise formal judicial directions, the judge would have had the measure of his jury better than I would.  Moreover, the true sense of the expression conveys the notion that this is an area of trouble or difficulty or controversy.  That is indeed how I read the judge’s remark when reading the summing-up as a whole.  In any event, as Mr Cheung points out, there were no admissions from the applicant and the controversy as between the respective parties as to what the applicant had or had not said was fully placed before the jury.

36.  The reference to police dramas in films and on the television was also in keeping with the judge’s style of addressing the jury and I cannot see how it mattered, although the judge left it to the jury to consider whether it did. In any event, the judge hardly needed to mention what would have been well‑known to any member of the jury.  As for the reference to the applicant’s “story”, when one reads the summing-up as a whole, it is quite clear that the judge was using the word (as do many judges) in the sense of the applicant’s “version of events” rather than in a more pejorative sense.

37.  I agree with Mr Cheung that these expressions by the judge should not be stretched too far.  I cannot see that they, either individually or cumulatively, could afford a reasonably arguable ground of appeal that the summing-up was unfair or unbalanced.

38.  In respect of the complaint that the judge somehow (even subliminally) invited the jury to share his assumption that the substances found in the car and in the kitchen were cocaine, the argument is unrealistic and untenable. Any reading of the passage as a whole and in context makes it entirely clear that the judge was making an assumption for the purpose of illustrating how an inference would work.  When the judge said he knew the jury were with him on this matter, he was acknowledging that they would appreciate that he was only making the assumption in order to make the point.  This matter is not merely not reasonably arguable, it is wholly unarguable.

39.  Similarly wholly unarguable is the contention that the judge’s use of the term “white powder” somehow undermined the defence case.  Not only did the judge acknowledge the controversy between the respective parties about “white powder”, he made it abundantly clear that he was simply using the term for the sake of convenience and was not suggesting that it was “white powder”, which was an issue in the case for the jury to resolve.

40.  Finally, the complaint that the judge did not repeat or extend his remark, when addressing the defence evidence, concerning the frailties of memory in respect of an incident that took place well over a year before any evidence was given in this case is also unarguable.  The judge was simply inviting the jury to use their common sense and “experience of human life” concerning the ability of witnesses to remember events which took place some time ago, and it is unthinkable that the jury would have confined its import to the prosecution witnesses alone.

41.  Neither individually nor cumulatively do any of the applicant’s complaints come anywhere near affording a reasonably arguable ground of appeal that the judge’s summing-up was unfair or unbalanced, or that the verdict was unsafe or unsatisfactory.  The application for leave to appeal against conviction is accordingly refused.

42.  The applicant is duly advised that he has the right to renew his application for leave to appeal to the full Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court of Appeal came to the view that there was no justification for the renewal of the application.