HKSAR v. CASTANEDA ORTIZ JAIRO

CACC 398/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 398 OF 2015

(ON APPEAL FROM HCCC 535 OF 2014)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

1.  The applicant was tried in the Court of First Instance of the High Court on an indictment containing a single count of trafficking unlawfully in a dangerous drug, namely 0.98 kilogramme of a powder containing 0.65 kilogramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The offence was particularised as having taken place on 10 May 2014 at the Customs Arrival Hall of the Hong Kong International Airport.

2.  The applicant’s trial took place between 27 October and 2 November 2015 before Deputy High Court Judge Lugar-Mawson (“the judge”) and a jury.  On 2 November 2015 the applicant was convicted by the unanimous verdict of the jury and on the same day was sentenced to 21 years’ imprisonment. 

3.  By way of a Notice of Application for leave to appeal (“Form XI”) filed on 25 November 2015, the applicant seeks leave to appeal against his conviction.

4.  At the hearing of the application we reserved our judgment which we said we would hand down at a later date.  This we now do.

The prosecution case

5.  It was an admitted fact that on the afternoon of 10 May 2014, the applicant, then aged 72 and a Columbian national with a clear record in Hong Kong, arrived at the Hong Kong International Airport on flight CX 640 from Doha.  It was also an admitted fact that the applicant had in his possession a flight itinerary which showed that he had been booked on a return flight to Doha on 19 May 2014 and that he had a hotel voucher for a Causeway Bay hotel for four nights’ accommodation. 

6.  The applicant cleared immigration shortly after 4:29 pm.  At around that time, as he walked through the “Green Channel” pulling a black wheeled suitcase, he was intercepted for Customs inspection by Acting Customs Inspector Chan Sin Sze (PW1).  He was taken to a clearance room, where in the presence of PW1, Customs officer Kwong Chun Pong, CO 9447, PW2, conducted an X-ray examination of the suitcase which revealed the presence of suspicious items. 

7.  The two Customs officers then escorted the applicant to baggage examination counter S6 in Customs Arrival Hall B, where PW2 unzipped the applicant’s unlocked suitcase and removed its contents.  This was some male clothing and a plastic bag containing a cardboard folder containing a medical report with two X-ray plates.  The plastic bag, the cardboard folder, the medical report and the X-ray plates bore the applicant’s name. Once this was done it was noticed that, notwithstanding that the suitcase was empty, it nevertheless felt very heavy. 

8.  The two Customs officers then escorted the applicant, together with his suitcase, to another room, Room 5T092A, where, in the applicant’s presence, PW2 used an electric drill to create a small hole in the bottom of the suitcase.  Immediately this hole was drilled traces of white powder leaked out and this powder subsequently tested positive for cocaine.  The applicant was then arrested and cautioned in English, a language which he did not fully understand.  The applicant made no reply.

9.  The applicant was then detained in Room 5T092A until around 5:30 pm when he was transferred to Room 5T024.  There, the applicant was searched by another Customs officer Shek Chee Kan, CO 0787 (PW3), but nothing of any significance was found on him.   

10.  At around 6:20 pm, the applicant asked to be allowed to take medication that he had brought with him in his suitcase and he was then sent to the Accident and Emergency Department of North Lantau Hospital for medical examination, from where he was subsequently transferred to Princess Margaret Hospital.  He remained at Princess Margaret Hospital for four days.

11.  As a consequence, he was not present when another Customs officer, Lok Wai Lam CO 99110 (PW4) came to Room 5T024 to dismantle the suitcase.  First, PW4 emptied the suitcase and then she took it apart.  By the time that she came to dismantle the suitcase all of its contents, which had been removed earliest, had been placed back in it and were now formally seized by PW4. 

12.  When PW4 dismantled the applicant’s suitcase she found at the bottom of it five packets of cocaine concealed between two metal plates.  Each packet was found to be triple wrapped, first in a silver coloured tinfoil substance, then in carbon paper and finally in a clear plastic wrapping. 

13.  On 11 May 2014, PW4 went to see the applicant at Princess Margaret Hospital and, with the assistance of a Cantonese-Spanish interpreter, showed him the exhibits seized from the suitcase.  Whilst acknowledging that the personal items were his, the applicant refused to sign on the exhibit packets containing the cocaine in question, the wrappers and the dismantled suitcase.

14.  It was an admitted fact that the drugs seized were tested by the Government Chemist and found to be the quantity of cocaine as particularized in the count.  This quantity of dangerous drug was subsequently estimated to have a Hong Kong street value of HK$963,340.

The defence case

15.  The applicant elected not to testify and called no other defence witnesses.  The defence case, advanced through the cross‑examination of the prosecution witnesses, was that the Customs officers had mixed up the applicant’s suitcase with the one containing the drugs.  It was suggested, inter alia, that:

(a)   the applicant’s suitcase was a brown rucksack-like one, and not the suitcase which PW1 identified which was black in colour; and

(b)   the applicant was not present when the suitcase containing the cocaine was X rayed and searched.

16.  The only two prosecution witnesses relevant to these issues were PW1 and PW2.

17.  PW1 disagreed that the applicant was in possession of a brown rucksack-type bag and maintained it was the small black carry-on suitcase that she identified.  She also disagreed with the suggestion that the applicant was not present when this small black carry-on bag was examined.

18.  In the course of cross-examining PW1 it was also put to her that Customs officers assaulted the applicant when he was handcuffed and this caused him to have a heart attack.  PW1 denied any knowledge of such an incident. 

19.  In examination-in-chief PW2 was asked to describe the applicant’s luggage:

“Q. Can you describe the luggage, please?

A. A red large luggage.

Q. Red?

A. Yes.

Q. Can you explain -- can you describe it in more detail?

A. After it was opened, it’s a soft luggage.

...

Q. It was a soft suitcase, was it, or a soft bag?

A.    Suitcase.”

20.  After describing how he removed the clothing from the suitcase at examination counter S6 in Customs Arrival Hall B, he was asked about the colour of the lining of the suitcase and the following exchange then took place:

“Q. And when these items were taken out, what colour was the lining of the suitcase?

A. The base was black.

Q. What about the inside of the case?

A. Are you talking about the colour?

Q. Yes.

A. Red.

Q. What about the top, what about the lid? Inside of the lid, what colour was that, do you remember?

A. Also red.”

21.  The photographs of the inside of the black carry-on suitcase showed that the suitcase was only of a size commensurate with it being carry-on luggage and that the interior of the suitcase was lined all over with a very bright red material lining.

22.  When Mr Boyton cross-examined PW2 he did not touch upon the colour or size of the bag and put very little of his case at all.  His cross-examination was brief and was as follows:

“XXN by MR BOYTON

Q. When you took the defendant to the room, you told him to sit down.

A. Yes.

Q. And then you took the bag, a bag, away from his presence.

A. Disagree.

Q. The drilling was not conducted in the presence of the defendant.

A. Disagree.

Q. The searching of the bag was not done in the presence of the defendant.

A. Disagree.

Q. This photograph, Exhibit P53, item 3, was not photographed in front of the defendant.

COURT: I’m sorry, which photograph? Which number?

MR BOYTON: Three, this one.

COURT: Page 6, Photograph 3.

MR HEMMINGS: Well, to be fair to this witness, he wasn’t present when the photographs were taken.

MR BOYTON: That’s my next question, that’s my next question, my Lord.

MR HEMMINGS: That was done by somebody else later.

COURT: Well, what is your question?

MR BOYTON: Well, this was not done - he can say he doesn’t know.

Q. This photograph...

COURT: Put it to him.

Q. ...item 3, was not taken in the presence of the defendant.

A. I was not present, that’s why I have no idea.

Q. Thank you. Now, finally, at 5.10 pm on 10 May, is it your evidence you seized the medicine, all the medicine of the defendant?

A. Yes. The medicine was not seized from his person but seized from the suitcase.

Q. And is it your evidence that when you seized the medicine from the suitcase, it was in front of the defendant?

A. Yes.

Q. And is it your evidence that he saw you seize this medicine?

A. Yes.

Q. So from what you’re saying, it stands to reason that the defendant must have known the medicine was removed from the bag.

A. Yes.

MR BOYTON:  Thank you.  I have no further questions, my Lord.”

The defence closing address

23.  In his closing address to the jury Mr Boyton put the applicant’s case as follows:

“The defendant put his case through me, but somehow, his bag was mixed up with another bag, and the Customs & Excise officers found the drugs in someone else’s bag. On my client’s instructions, I put to Inspector Sin-sze -- Chan Sin-sze that at the time she intercepted the defendant, he was in possession of a brown bag. Now, there’s no evidence of that, but that’s how he put his case. And that was a rucksack tape (sic) bag. Inspector Chan said no.

Then after I put the case to Inspector Chan, customs officer 9447, Kwong Chun-pong, when my learned friend, Mr Hemmings was asking that officer to describe the luggage of the defendant, when he was with Inspector Chan, that is, the defendant was with Inspector Chan, custom officers 9447 said, ‘A large -- a red large luggage.’ I relate, a red large luggage. So here, ladies and gentlemen of the jury, you have a significant and material discrepancy in the prosecution case. How do you deal with that?

... one of the directions that the judge will give you is ... the burden of proving the defendant’s guilt is on the prosecution. I repeat that. The defendant does not have anything to prove.

What I had suggested was that the prosecution somehow, after the defendant was intercepted, mixed up the bag with someone else’s.

To put it in the context of the trial and the exhibits in this case exhibit P22, the black bag, the ones depicted in the photographs never belonged to the defendant. If you look at the conflicting evidence of the two officers as to the first time they saw the bag. And one says black, and the other says red, then you have a real problem in the prosecution case, especially because I never said they were lying. Both were telling the truth, and you have a conflict, because both of them were telling a truth, and that is the problem with the prosecution case.

... Remember ... The defendant does not have to prove anything.

So he does not have to prove to you the bags were actually mixed up, and don’t say, ‘It would have been better if the defendant gave an explanation.’ But he does not have to and it is for the prosecution to prove there was no mix-up. All he has to show to you, and all you have to consider is the bags may have been mixed up. The fact that two witnesses has described his bag with two different colours, logically suggest to you that the bags may have been mixed up. You do not have to decide whether or not they were actually mixed up.

And I again go back to and remind you of the second part of the direction in a criminal trial, the burden of proof of proving the defendant’s guilt is on the prosecution. And I would suggest to you that the material discrepancy, the different colours means the prosecution has failed to prove the defendant’s guilt.

So what I am saying is because of this mix-up, you cannot be sure. There is a reasonable doubt. With this discrepancy before you, you cannot be sure which version of the two officers is correct. Was it a bag? Maybe, maybe not. Or was it a backpack. Maybe, maybe not. Do not choose between them. Do not simply choose a particular version because it supports the prosecution case. Either prosecution witness could be correct. I would suggest to you, members of the jury, it is what we call a reasonable doubt, and that reasonable doubt has to be given to this defendant.

If you accept the evidence of the entire prosecution case, you cannot be sure at the time that the defendant was intercepted by Inspector Chan, it was a red or a black bag. The directions I have mentioned there, the two directions I mentioned earlier, if properly applied to the evidence, must lead you to the conclusion that there is a doubt in the evidence and the defendant should be acquitted. You cannot speculate - that’s guessing - you cannot guess why there are two different versions.” (Emphasis added.)

The summing-up

24.  At the outset of the summing-up, the judge spoke of the credibility of the prosecution witnesses, who were all Customs officers, saying:[1]

“The fact that all of the prosecution witnesses that you have heard from are Customs officers is in itself totally irrelevant. In Hong Kong, discipline services officers, such as police officers and Customs officers, stand in no special position. They are private citizens like you are and like I am and their evidence is no more worthy of belief or deserving of disbelief than any other persons.”

25.  Regarding any inconsistencies in the evidence, the judge said:[2]

“Do not automatically reject a witness’s evidence just because of inconsistencies or conflicts. Consider whether the differences are important ones or not. People sometimes honestly forget things or make mistakes about what they remember. And, of course, two or more people may witness the same event yet hear or see it differently.”

26.  Then, the judge summarised the defence case, saying, inter alia, that:[3]

“The defence case, as put in Mr Boyton’s cross-examination of the prosecution witnesses, is that there has been a very, very, serious mix-up by the investigating Customs officers. The black suitcase is not the defendant’s. His was a brown rucksack-like one. He had nothing at all to do with the black suitcase, and as he had nothing at all to do with it, he knew nothing about there being dangerous drugs concealed inside it.”

27.  The judge then referred to the different descriptions of the suitcase that had been given by PW1 and PW2, and went on to discuss some of the points about this discrepancy that had been made by Mr Boyton in his closing address.  He said:[4]

“The first prosecution witness, Inspector Chan, says that she saw the defendant pulling a small black suitcase with wheels. The second prosecution witness, Officer Kwong, says that Inspector Chan instructed him to x-ray and then examine a large red luggage. There is an obvious world of difference between the two.

Set against that there is an equal world of difference between the suitcases Inspector Chan and Officer Kwong described and the brown rucksack-type bag that Mr Boyton suggested in cross-examination the defendant had with him.

In evaluating this, what Mr Boyton described as a discrepancy, you may care to bear in mind that the black wheeled suitcase exhibited in this trial has a red lining, and that 17 months had passed since Officer Kwong, the second prosecution witness, x-rayed and examined the contents of a suitcase at the airport in the afternoon of 10 May 2014, and Wednesday 28 October 2015 the day he gave evidence before you.  You are all aware that memory can place tricks on people.”

28.  However, he then gave the following direction:[5]

“Mr Boyton said in his closing speech on Friday, that in his cross-examination of the prosecution witnesses he had not accused them of lying. That is correct. He never said in so many words something to the effect, ‘I put it to you that you are lying’. But you may believe, members of the jury, that implicit in the questioning – implicit in the questioning by cross-examination and implicit in the defence case as put in those questions – is an allegation that the prosecution witness Customs officers have not only been culpable of gross negligence in attributing the black suitcase as being the defendant’s, but have then gone on to manufacture a wholly false case against the defendant, even to the extent of falsely claiming that what he accepted were his clothing, his phone charger and his medical x-ray plates and reports were found in that black suitcase.

Members of the jury that is a most serious allegation to make against members of a disciplined service whose duty it is to enforce the law and I can say no more about it, but I know ladies and gentlemen that you will – in fact you must – give this matter your most serious attention during the course of your discussions in the jury retirement room.

Only if you are sure, only if you are satisfied beyond a reasonable doubt that there was no mix-up by the Customs officers and that the prosecution case is not a false one, and that the defendant was in possession of the black suitcase exhibited in his trial, can you go on to consider what I suggest is the second real issue in this case. That is the question of whether or not the prosecution, by evidence have made you sure that the defendant knew there were dangerous drugs of some kind in that suitcase.” (Emphasis added.)

The ground of appeal

29.  In his Perfected Ground of Appeal Against Conviction Mr Boyton, who appeared for the applicant both at trial and on appeal, advanced only one ground of appeal, namely that the conviction was unsafe and unsatisfactory as there is a lurking doubt in respect of the conviction.  The ground of appeal goes on to state that the lurking doubt arises from proof that the bag containing the dangerous drugs was in fact the bag possessed by the applicant.  The lurking doubt, it is said, is exaggerated by two misdirections. 

30.  The first misdirection was the personal comment by the judge on what he suggested was implicit in the applicant’s defence which comment, it is said, had the effect of elevating the defence of a possible mix-up (or material discrepancy) in respect of the two suitcases, into a serious allegation that prosecution witnesses had manufactured a wholly false case against the applicant. 

31.  The second misdirection was the judge’s statement that the applicant’s allegations were made “against members of a disciplined service whose duty it is to enforce the law.”  This misdirection, so Mr Boyton argued, impliedly suggested to the jury that the prosecution witnesses were unlikely to fabricate a case against the applicant by reason of their status as officers of a disciplined service. 

32.  In support of his criticism of this direction, Mr Boyton referred the court to HKSAR v Leung Ka Yin[6], where, after discussing a number of authorities the Court of Appeal said:

“From the authorities referred to above, it can be discerned:

(1) that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted for a criminal offence or a serious criminal offence, or liable to lose his job;

(2) that a trial judge must not indicate to the jury that the police as a category or otherwise are unlikely to fabricate evidence, or are more unlikely than other witnesses to fabricate evidence; and

(3) that words which may lead the jury to believe that the police are less likely to tell lies, or give any due weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.”

33.  In support of the ground of appeal Mr Boyton submitted that the judge’s two misdirections had:

“... limited the jury’s deliberations from resolving a material discrepancy between two honest and truthful prosecution witnesses, which would have created a reasonable doubt: (1) to a choice as to whether or not the Customs & Excise had manufactured a false case against the applicant; or alternatively (2) that the prosecution witnesses were simply credible or not.”

34.  Mr Boyton further argued that the effect of the first of the impugned directions was to allow the jury to convict the applicant if they concluded that the Customs officers had not manufactured a false case against the applicant, without going on to consider the reliability of the evidence of those officers.

35.  Mr Boyton also submitted that the judge had not made it sufficiently clear that what he was saying as to what was implicit in the defence case were his personal views which they, the jury, were free to reject.

36.  In support of his “mix-up” assertion, Mr Boyton also pointed to the lack of any evidence as to how and when the applicant’s clothing, which had been removed from the suitcase at the baggage examination counter, had come to be placed in the suitcase in which the drugs were found.  Given that the defence case was that the applicant’s clothing had been returned to the wrong suitcase through a mix-up in the suitcases, it was wrong of the judge to tell the jury that implicit in the defence case was an allegation that the Customs officers had falsely claimed “that what he accepted were his clothing, his phone charger and his medical X-ray plates and reports were found in that black suitcase.”

37.  Mr Boyton submitted that the cumulative effects of the two misdirections were that they:

(1)   encouraged the jury to focus on the credibility of the officers rather than their reliability;

(2)   directed the jury’s attention away from the discrepancy created by PW1’s and PW2’s evidence;

(3)   placed before the jury a wrong portrayal of the defence case;

(4)   contrary to his earlier direction, suggested that law enforcement officers “would not manufacture false evidence – or for that matter lie.”

38.  These effects, it was submitted, prevented the jury from focusing on the discrepancy, thereby depriving the applicant of a fair trial and denying him the opportunity of an acquittal.

The respondent’s submissions

39.  Ms Ching, Senior Public Prosecutor, for the respondent, submitted that what the judge said as to what was implicit in Mr Boyton’s cross-examination of the prosecution witnesses was accurate.  The effect of Mr Boyton’s questioning was, so she argued, to advance various allegations of fabrication and even ill-treatment by the different Customs officers.

40.  As to the judge’s comment on the seriousness of the allegations and that they were being made in respect of persons whose duty it was to uphold the law, Ms Ching submitted that this was fair comment as the judge was addressing the seriousness of the allegation and not the credibility of the Customs officers as witnesses.  In support of this submission she referred to the earlier direction by the judge that disciplined services witnesses did not occupy any special position and it fell to the jury to assess their credibility in the same way as any other witness.

Discussion

41.  In respect of the first ground of appeal it must be borne in mind that the judge’s comment was no more than that – just comment which the jury were free to accept or reject as they saw fit.  This much is clear from his prefatory words “But you may believe.”  Unfortunately these are the only words that indicate the judge is expressing a personal opinion and it would have been better if he had made clearer to the jury that this part of the summing-up reflected his personal views which they were free to reject.  But, the real question is whether by his subsequent comments the judge fairly and accurately presented the applicant’s case.  In order to answer this question it is necessary to consider the elements of both the prosecution case and the defence case.

42.  The prosecution case was that there was a step-by-step processing of the applicant which can be summarized as follows:

(1)   At 4:40 pm on 10 May 2014 the applicant was intercepted at the Green Customs Channel by PW1.

(2)   The applicant, together with his black wheeled suitcase, was taken by PW1 to a clearance room where PW2 was asked to X-ray the suitcase.

(3)   The X-ray showed suspicious items in the suitcase and so the applicant and his suitcase were taken to baggage examination counter S6 in the arrival lobby.  Here the suitcase was unzipped and the contents were removed.  Once this was done the suitcase was found to be very heavy.  Present at this time were PW1, PW2 and the applicant.

(4)   The applicant and the suitcase were then taken to Room 5T 092A and there PW2 drilled a small hole into the bottom of the suitcase.  Traces of white powder fell out and they tested positive for cocaine.  Throughout this period the persons present were PW1, PW2 and the applicant.

(5)   PW2 then arrested and cautioned the applicant who was guarded in this roombyPW3.  PW1 left the room at 4:50 pm.

(6)   At 5:30 pm the applicant was taken to Room 5T024 where he was searched by PW3. 

(7)   At 6:20 pm the applicant was taken to North Lantau Hospital and later transferred to Princess Margaret Hospital where he remained for some days.

(8)   At 6:15 pm, PW4, from the Airport Investigation Division, was directed to go to Room 5T024.  Once there she emptied the suitcase, which now contained the contents that had been removed in step 3 above, and took it apart.  Sandwiched between 2 metal plates at the bottom of the suitcase she found 5 packets of dangerous drugs.  The applicant was not present at this time.

43.  The effect of Mr Boyton’s cross-examination was that, on the defence case, the applicant was present only in step (1) above and was not present at steps (2) – (4) and step (8).  It was agreed that the applicant was not present at step (8) and so what was in issue was whether he was present during steps (2) – (4), which were the key steps in the discovery of the concealed cocaine.  The absence of the applicant during steps (2) – (4) begs the question: where was he?  It was never actually put to PW1 what the applicant was doing during these steps, where he was and whether anyone was with him.  But during these steps it is suggested that, somehow, an innocent mixing-up of the suitcases took place. 

44.  The defence case was not that all or some of these steps did not take place; rather that the applicant was not present when they did.  If the black suitcase is the wrong suitcase then, on the defence case, the mix-up must have occurred between steps (3) and (4).  The officers had the correct suitcase at step (2) as that is how they came into possession of the applicant’s belongings.  Any mix-up of suitcases must have taken place after step (2).

45.  But the defence was not just that there was a mix-up of the applicant’s suitcase with the suitcase in which the drugs were found.  The defence case centred around the conflict or discrepancy between the evidence of PW1 and PW2 on the size and colour of the applicant’s suitcase and there were two aspects to it.  The first was the mix-up defence which Mr Boyton dovetailed with the burden of proof direction.  The second aspect was that the existence of the discrepancy meant that there must be a reasonable doubt and so this aspect of the defence dovetailed with the standard of proof direction.  These two aspects of the defence case are quite apparent from the italicised parts of Mr Boyton’s closing address quoted in paragraph 23 ante.

46.  It is equally clear from Mr Boyton’s closing address that he was saying of PW1 and PW2, at least in respect of the description of the applicant’s suitcase, that they were not lying and they were both telling the truth as they believed it to be, but that they were both mistaken. They were both mistaken because the applicant’s suitcase was neither black nor red and its design was of a rucksack style.  Witnesses can be adamant and believe wholeheartedly in the accuracy of their evidence and yet be mistaken.  Such witnesses are not dishonest, untruthful or necessarily lying. They are simply mistaken and notwithstanding their conviction that they are telling the truth their evidence cannot be relied upon .

47.  Other than their conflict over the size and colour of the suitcase, PW1 and PW2 were also both adamant that the applicant was present during steps (2) – (4) in the processing of the applicant’s bag and in all other areas of their testimony they supported each other. 

48.  The defence never explicitly said what their position was in respect of the answers by PW1 and PW2 that the applicant was present throughout the processing of his suitcase as set out at paragraph 41 ante.  But, his cross-examination of both witnesses was limited to putting to them his instructions and he never accused them of lying or fabricating a false case against the applicant. Furthermore, as we have shown, Mr Boyton did make it very clear that in respect of their evidence on the size and colour of the suitcase the defence position was the two witnesses were not lying but were telling the truth as they believed it to be.  Given this defence position in respect of the suitcase it could not be assumed by the judge that on the question of whether the applicant was present during the processing of the suitcase, the defence case was that PW1 and PW2 were lying. 

49.  Instead the judge invited the jury to assess the credibility of the defence by having regard to what he suggested was implicit in it, namely allegations of criminal misconduct, and then to invite the jury to find that what was implicit in it was not credible because the persons the subject of these allegations were law enforcement officers.

50.  If the judge wished to comment to the jury on his view of what seemed to him to be implicit in the defence case, on the assumption that on this question the defence case was that PW1 and PW2 were lying, he should have first clarified with Mr Boyton the true nature of the defence on this question.

51.  We are satisfied that in assuming the defence case was that PW1 and PW2 were lying in their evidence about the presence of the applicant during the processing of his suitcase and then suggesting that it was implicit in such a defence case that the Customs officers had manufactured a false case against the applicant, the judge incorrectly portrayed the defence case.

52.  This was then exacerbated by his comment which suggested that persons whose duty it was to enforce the law would not deliberately breach it by misconducting themselves in the way implied by the defence case.  This comment was in clear breach of the second category of impermissible comment laid down by the Court of Appeal in Leung Ka Yin and quoted at paragraph 32 ante.

53.  The judge was entitled to invite the jury to consider the probability of persons who had made an innocent mistake resorting to criminal conduct in fabricating a case against an innocent person to conceal that mistake, if that was in fact the defence case.  But a judge is not entitled to suggest to the jury that a defendant’s allegation of criminal conduct against a law enforcement officer is not credible because a law enforcement officer enforces the law, he does not break it.  Yet, this is the effect of what the judge said.  This effect, created by a direction towards the end of the summing-up would not have been neutralized by the direction the judge gave at the beginning of his summing-up that is quoted at paragraph 24 ante. 

54.  For these reasons we are satisfied that the appeal must be allowed and the conviction quashed.  Being so satisfied it is unnecessary for us to consider the other complaints advanced by Mr Boyton.

Re-trial

55.  At the hearing of the application we invited the parties to address us on the question of retrial.  Ms Ching said that if the appeal was successful she would be seeking a retrial in view of the seriousness of the crime.  Mr Boyton submitted that a retrial should not be ordered as the existence of the discrepancy meant the prosecution would not be able to prove its case beyond reasonable doubt.

56.  We do not agree with Mr Boyton.  The resolution of a conflict in the evidence is a normal part of the fact finding process, whether that be done by a judicial officer or a jury.  On the evidence available to the prosecution it would be open to the jury to resolve that conflict and be satisfied to the requisite standard of the guilt of the accused.

Conclusion

57.  We allow the application for leave to appeal conviction and treating the hearing of the application as the hearing of the appeal we allow the appeal and quash the conviction. 

58.  We order that the applicant be re-tried on a fresh indictment before another judge, which indictment is to be filed within 14 days hereof, and that the matter be listed before the Listing Judge for the fixing of trial dates within 28 days hereof.  We remand the applicant in custody pending his re-trial.