HKSAR v. YEUNG CHUN HIN

CACC 339/2017

[2018] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 339 OF 2017

(ON APPEAL FROM HCCC NO 271 OF 2016)

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

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

1.  The applicant was charged with one count of trafficking in dangerous drugs, namely 530.55 grammes of a crystalline solid containing 332.17 grammes of methamphetamine hydrochloride (commonly known as “Ice”) and 44 tablets containing 0.56 gramme of midazolam, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. After a trial before Deputy Judge Lugar-Mawson (“the judge”) and a jury in the High Court, the applicant was convicted (by a majority verdict of 5:2) on 16 October 2017. He was sentenced to 16 years’ imprisonment on the same day. He applied to this Court for leave to appeal against conviction only.

2.  On 11 September 2018, we granted the applicant leave to appeal against his conviction, allowed the appeal, quashed the conviction and sentence and ordered him to be retried on a fresh indictment, indicating that we would hand down the reasons for our decision in due course. These are our reasons.

The prosecution case

3.  In the late evening on 10 October 2015, a team of police officers in plainclothes carried out an operation at Kam Tsin Lane 7, Kam Tsin Road, Sheung Shui, New Territories.  There, they commenced observation in the vicinity of the house (“the house”) in which the applicant lived with his wife and daughter, and of which his wife was the tenant[1].

4.  At about 1:10 am on 11 October 2015, the arresting officer (PC 7278) saw the applicant leaving the house.  The applicant was at the time wearing a T‑shirt, blue jeans and sports shoes[2].  Upon a search of his person and subsequently the house, dangerous drugs were found in the following circumstances:

Exhibit Number	Description	Place
P1	Two transparent plastic bags containing 16.8 grammes of a crystalline solid containing 16.5 grammes of Ice	In the cuff of the applicant’s left sock[3]
P2	Six transparent re-sealable plastic bags containing 77.6 grammes of a crystalline solid containing 71.9 grammes of Ice	Inside a silver can in one of the bedrooms of the house[4]
P3	One transparent re-sealable plastic bag containing 187 grammes of a crystalline solid containing 0.62 grammes of Ice	Inside a silver can in one of the bedrooms of the house[5]
P5	Five foil packs containing 44 tablets containing 0.56 grammes of midazolam	Inside a silver can in one of the bedrooms of the house[6]
P4	One transparent re-sealable plastic bag, wrapped by cello tape, containing 249 grammes of a crystalline solid containing 243 grammes of Ice	Inside a second silver can in the same bedroom of the house[7]

5.  The prosecution alleged that when the applicant was searched outside the house, he was found in possession of two bags of Ice, a key holder containing three keys, a mobile telephone and $3,310 in cash[8].  As for the house search, apart from the said Ice and midazolam, there was also found in the same bedroom as the dangerous drugs:

(a)  a large plastic bag containing 20 re‑sealable plastic bags[9];

(b)  a plastic bowl and a spoon[10], both with traces of Ice[11]; and

(c) two electronic scales[12], one of which contained traces of Ice[13].

6.  It was an admitted fact that the retail value of the Ice and midazolam, the subject matter of the count on the indictment, were $167,654 and $2,200 respectively[14].

7.  An important part of the prosecution case was that the applicant had allegedly made a total of four admissions under caution at the scene (as particularised below)[15], all of which were held to be voluntary and admissible following voir dire proceedings[16].  Two of the admissions – (i) and (iv) below – are of particular relevance to Ground 1 of the grounds of appeal.

	The admission	Circumstances in which the admission was made; and the relevant time
(i)	“Ah Sir, those two bags of Ice are for my own consumption.”	Upon Exhibit P1 being found on the applicant; at 1:14 am
(ii)	“Ah sir, these two keys are also mine.”	Upon the keys leading to the main gate and main door of the house being found on the applicant; at 1:16 am
(iii)	“The key to the room is mine.”	When the police used the key to unlock and enter the bedroom in which dangerous drugs were subsequently found; at 1:21 am
(iv)	“Ah Sir, the Ice, the [midazolam], the plastic bag(s), the spoon(s) and the electronic scales in the room are all mine.  My wife and my daughter have nothing to do with it.  Only I have the key to this room.  They knew nothing.”	After the relevant items were found in the house; at 1:30 am

8.  After each admission, PC 7278 immediately made a record of it in his notebook, which the applicant duly signed.  Later, at Sheung Shui Police Station, the same officer made a post-record of the events of the evening and of the applicant’s admissions, which the applicant again signed.  The contents of the notebook read as one continuous record from the time the officer reported for duty on 10 October 2015 to the time he concluded the process of post-recording at 5:30 am on 11 October 2015.

9.  It was the prosecution case, based on circumstantial evidence, that the applicant was a drug dealer, who had stashed dangerous drugs at his home[17], from which he was leaving at the time of arrest in order to make a delivery of dangerous drugs[18].

The defence case

10.  The applicant elected to give evidence before the jury.  He also called his wife (DW2) and daughter (DW3) as defence witnesses.

11.  In his evidence, the applicant claimed that the case against him was a “set‑up”.  He said that on the night in question he was leaving the house to take out the rubbish.  When he was arrested by the police, he was wearing night wear and slippers only[19]. He denied carrying any money or the key holder with him, nor was he wearing socks. He further maintained that there were no dangerous drugs found on his person. Furthermore, the dangerous drugs found in the locked bedroom were not his: he had rented that particular room to a male friend, called Chan Yuk-wah, who must have kept dangerous drugs there without his knowledge.  He claimed that he had repeatedly told the police that the locked bedroom was rented to his friend, yet the police insisted on entering that bedroom using a spare key produced by his wife.

12.  The applicant testified that he did not make any of the verbal admissions as alleged by the prosecution.  Furthermore, he had been tricked into signing the post-recorded entries in PC 7278’s notebook without knowing the contents, and as a result of being scolded and threatened[20].  In particular, he was told that if he refused to co‑operate, the police would arrest his wife instead.  Ultimately, his wife and daughter were given statements to sign but they were not taken back to the police station.

13.  The applicant produced in evidence a tenancy agreement, dated 5 May 2015, signed between himself and Chan Yuk-wah (Exhibit D2), as well as three letters or notices addressed to Chan Yuk-wah at the house (Exhibits D3, D4 and D5).  All of these documents were adduced in order to support the assertion that Chan Yuk-wah was the occupier of the bedroom in which the dangerous drugs had been found[21].

Summing‑up

Grounds of appeal

14.  Two grounds of appeal have been articulated in the applicant’s grounds of appeal.  In view of our disposal of this matter, it is only necessary to deal with the first ground of appeal.  In essence, this ground complains that the judge did not give full or proper directions in accordance with Direction 39.1 of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute[22]; which directions derive from the decision of the House of Lords in R v Mushtaq[23], disapproving the earlier decision of the Privy Council in Chan Wei Keung v The Queen[24].

Respondent’s submissions

15.  We did not call upon Mr Jeremy Cheung, for the applicant, to deal with this ground, but instead asked Ms Hermina Ng, on behalf of the respondent, to address the complaint.  Whilst acknowledging that the judge did not give the relevant direction in the terms of Specimen Direction 39.1, she argued that he did give an abbreviated direction, which nevertheless fulfilled its essential requirements.

16.  In putting forward this argument, she relied on two particular passages in the summing‑up.  The first, which concerned the circumstances of the signing of the admissions in the officer’s notebook, was as follows[25]:

“Obviously, if you decide that the prosecution case is false, or even if you are unsure about that, you will ignore PC 7278’s notebook entries in their entirety. And you should also ignore them in their entirety if you believe any impropriety such as that alleged by the defendant, the threat to arrest his wife and daughter, and the threat to beat him up occurred.”

17.  The second passage, which appears to deal with the reliability of the admissions, was[26]:

“[Defence counsel] made the point … that according to PC 7278, the defendant was not questioned before he made the admissions. There was a caution immediately followed by an admission. Does that cause you to question the prosecution case, ladies and gentlemen? [Defence counsel] also made the point about the wording of the admissions themselves, on the arrest in the lane, “Ah Sir, those two bags of ‘Ice’ are for my own consumption”. On the two keys opening the iron grille and the wooden door, “Ah Sir, those two keys are mine”. On opening the locked bedroom door, “The key to the room is mine”. On PC 7278 cautioning the defendant inside the locked bedroom for an offence of traffic in dangerous drugs, “Ah Sir, the Ice, midazolam, plastic bags, spoon, and the electric scales inside the room were all mine. It has nothing to do with my wife and the daughter. Only I have the key to this room, they know nothing”.

Now, [defence counsel] made the point that they are all very convenient and comprehensive answers, but are they just a little too convenient, and a little too comprehensive to be believable?  Are they just a little too pat?  Now, ladies and gentlemen, that is a matter you are going to have to decide.”

18.  Ms Ng submitted that, although in a different and abbreviated form, these directions fulfilled the requirements of a so‑called Mushtaq direction.  Indeed, she contended that the direction was arguably more favourable to the applicant than the terms of Specimen Direction 39.1.

Discussion

19.  We were unable to accept Ms Ng’s valiant attempt to support the judge’s directions in his summing‑up.  The danger, with respect, of judges departing from the terms of a carefully crafted Specimen Direction, particularly one which prescribes (as it does here) a structured process of analysis for the jury in its fact-finding task, is that the result risks losing both the content and the emphasis of the direction.  Furthermore, where the highest courts of various common law jurisdictions, including our own, have wrestled over many years with the problem of how to direct juries where admissions are said to have come about in circumstances of oppression and have produced a Specimen Direction specifically designed to address that problem, a departure from its terms is a particularly unwise course.  The suggested Specimen Direction sets out a progressive step‑by‑step approach for the jury, who might otherwise be confused by the interaction between an assessment of the truth and reliability of a confession and any circumstances of oppression which might impinge on that assessment.

20.  It was important for the jury to understand that, on the defence case, there were separate and distinct findings of fact to be made in respect of both the oral and written admissions.  So far as the oral admissions were concerned, the jury had to determine whether they were made and, so far as the written admissions were concerned, they had to decide whether the applicant, by signing the post-record, had adopted that document as an accurate record of what had transpired that night, and of what he had said on each occasion that he was cautioned.

21.  The jury also had to understand that they were to complete these fact‑finding tasks first, and that even if they found against the applicant on these issues, that was not the end of the matter and they were still required to proceed in accordance with the steps set out in the Specimen Direction.

22.  Unfortunately, the judge did not direct the jury in this way, with the result that his abbreviated directions fell short of what was required in a number of important respects.  First, his directions did not require the jury to decide the two primary factual issues, namely whether the applicant in fact made the admissions alleged and adopted the accuracy of the post-record, and only to proceed further if they were sure of these two matters of fact.

23.  Secondly, the judge’s directions on the second issue of whether the admissions were true came right at the end of the summing‑up, as part of his summary of defence counsel’s speech to the jury following his recitation of the relevant law and evidence in the trial, and merely informed the jury that they would have to decide whether the admissions were “believable”[27].  Instead of instructing the jury to decide whether they could be sure that the oral admissions and written confirmation of those admissions were true, he directed them to ignore the notebook entries if they decided that the prosecution case was false or if they were unsure about the prosecution case[28].

24.  Thirdly, the judge directed the jury to ignore the notebook entries if they believed the applicant’s allegations of impropriety.  He did not say that they must disregard the admissions if they thought his allegations of impropriety might be true.

25.  Fourthly, the judge did not ask the jury to consider, even if they were sure the applicant had made the admissions and that they had not been made in circumstances of oppression, whether the admissions were true and to disregard them if for whatever reason they were not sure they were true.  In the context of the applicant’s allegation that he cooperated because of his fear or concern that his wife and daughter would be arrested, that was a relevant and necessary direction to give.

26.  Finally, the judge’s directions appear only to have dealt with the written notebook entries as distinct from the oral admissions.  In some cases where, as could be the position in this case, there were, or were found to be, no allegations or circumstances of oppression at the time of the applicant’s arrest, the jury could be entitled to rely on oral admissions, provided they had gone through the various stages set out in the Specimen Direction, even though they rejected the subsequent written post-record of those admissions.  It does not automatically follow that because the jury reject a post-record, they must also reject the prior oral admissions.

27.  The Privy Council in Thongjai v The Queen[29], an appeal emanating from Hong Kong, preserved this distinction in appropriate cases[30]:

“In the context of the case where, as Macdougall JA stated, there was no suggestion by the defendant of threat or inducement or other impropriety by the police at the time of the alleged oral admission, it was correct for Macdougall JA to state that the only issue was whether the oral admission had been made, and if so, what weight should be given to it.”

28.  However, we must emphasise that the jury should in these circumstances also be told that if they rejected the written record of the admissions as a result of their view of the credibility of the relevant police or other officer who received the original oral admissions and later reduced them into writing in a post-record, or indeed of other officers who participated in that process, they should take that into account in deciding whether the oral admissions were in fact made and whether they were true.

29.  Some of what the judge directed might be said to have met some of the requirements of the Mushtaq direction.  But, in terms of the analysis and progressive step‑by‑step evaluation by the jury, and in terms of the emphasis to be given to these directions, they fell manifestly short.  That is, with respect, the inevitable consequence of abbreviating directions which have been carefully and precisely worked out so as to avoid the dangers associated with admissions and confessional evidence alleged to have been fabricated and/or obtained in oppressive circumstances.

30.  We have given thought to whether the failure of counsel to ask the judge to given a proper Mushtaq direction affects our consideration of this matter and our resolution of the appeal, given that the summing‑up was otherwise extremely favourable to the applicant.  However, we think that the applicant’s admissions were such an important part of the prosecution case that the applicant was entitled to expect that the jury would receive from the judge the full and emphatic terms of the relevant Specimen Direction.  Rightly in our view, Ms Ng did not advocate in the circumstances the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221. Although by no means determinative of our thinking, we also note that the verdict of ‘guilty’ was by a majority of 5:2.

31.  Nevertheless, we desire to say that we are dismayed, once again, that neither prosecuting nor defence counsel (neither of whom was Ms Ng or Mr Cheung) saw fit to draw to the attention of the judge what seems to us to have been an obvious and glaring omission from the summing‑up of the full scheme and terms of Specimen Direction 39.1.

32.  It was for the above reasons that we granted leave to appeal on Ground 1 of the grounds of appeal and allowed the appeal.  As we have already indicated, we did not consider it necessary to hear argument on Ground 2.

Retrial

33.  Having announced our decision, Ms Ng made an application for a retrial of this matter.  Mr Cheung rightly did not oppose the application.  This was a very serious case, for which the applicant had been sentenced to 16 years’ imprisonment.  The reason for us allowing the appeal had nothing to do with the relative merits of the case, but rather concerned the absence of a necessary set of directions dealing with an important aspect of the evidence; an absence which neither counsel at trial saw fit to draw to the attention of the judge.

34.  In the circumstances, we ordered that the applicant should be retried before a jury on a fresh indictment.

[1] Admitted Facts, para 13: Appeal Bundle p8.

[2] Summing‑up: Appeal Bundle p19F-H.

[3] Summing‑up: Appeal Bundle p15T-V.

[4] Admitted Facts, para 3(A): Appeal Bundle p5.

[5] Admitted Facts, para 3(B): Appeal Bundle p5.

[6] Admitted Facts, para 3(C): Appeal Bundle p5.

[7] Admitted Facts, para 3(D): Appeal Bundle p5.

[8] Summing‑up: Appeal Bundle p19J-K.

[9] Admitted Facts, para 3(E): Appeal Bundle p5.

[10] Admitted Facts, para 4: Appeal Bundle p5.

[11] Admitted Facts, para 7(F)-(G): Appeal Bundle pp6-7.

[12] Admitted Facts, para 4: Appeal Bundle p5.

[13] Admitted Facts, para 7(H): Appeal Bundle p7.

[14] Admitted Facts, paras 9-10: Appeal Bundle p7.  In the summing‑up, however, their values were erroneously stated as $167,645 and $2,240 respectively (Appeal Bundle p23H-I).

[15] English translation of PC 7278’s Notebook: Appeal Bundle pp51-57.

[16] The voir dire lasted 5 days (21-22 and 25-27 September 2017), during which the prosecution called 5 witnesses and the defence called the applicant and his daughter.  Reasons for ruling were given on 29 September 2017.

[17] Transcript of prosecution closing submissions: Appeal Bundle p77H-I.

[18] Transcript of prosecution closing submissions: Appeal Bundle p77L-M.

[19] Summing‑up: Appeal Bundle p25C-E.

[20] Summing‑up: Appeal Bundle p16N-O and p23K-S.

[21] At trial, prosecuting counsel suggested to the applicant that Exhibit D1 was a false document, which suggestion he denied.  In his summing-up, the judge directed the jury that “there is no evidence that it was a false document. The suggestion that it is false does not appear to have been investigated” (Summing-up: Appeal Bundle p31E-F).

[22] Specimen Direction 39.1 reads as follows:

“There have been produced records of certain interviews which the police say they conducted with the defendant.  The prosecution assert that [although you should not accept everything said by the defendant to the police as accurate] nonetheless the interviews contain admissions by the defendant that (state the essence of the admissions) and the prosecution further contend that those admissions are true.

The defendant’s case is that [he made none of those admissions and that they were fabricated by the police {but that to the extent that he is said to have adopted the admissions by appending his signature to those documents he was forced to do so; that the signatures are therefore worthless; and that the admissions are untrue}] [although he made the confession it is not true].

In deciding whether you can safely rely upon the admissions, you must decide two issues:

1.   Did the defendant in fact make the admissions?  If you are not sure that he did, you must ignore them. If however you are sure he did, then:

2.   Are you sure that the admissions are true?  In addressing that issue (whether the admissions / answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable].  If you conclude that the admissions / answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions / answers. 

In this case, the defendant alleges that (summarise the allegation).  If you conclude that that allegation is or may be correct and that the admissions / answers were or may have been obtained as a result of that conduct, then you must disregard the admissions / answers.

If, however, you are sure that the defendant made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true.  If, for whatever reason, you are not sure that the admissions are true, you must disregard them.  If on the other hand, you are sure that they are true, you may rely on them.  (Remind the jury of any specific weaknesses in the confession evidence which may reflect on its reliability.)”

[23] R v Mushtaq [2005] 1 WLR 1513.

[24] Chan Wei Keung v The Queen [1967] 2 AC 160.

[25] Summing‑up: Appeal Bundle p31P-S.

[26] Summing‑up: Appeal Bundle p33J-U.

[27] At paragraph 17 supra.

[28] At paragraph 16 supra.

[29] Thongjai v The Queen [1997] 3 WLR 667.

[30] Ibid., at 677G‑H.