HKSAR v. LAM CHIU MO

CACC 206/2018

[2020] HKCA 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 206 OF 2018

(ON APPEAL FROM HCCC 349 OF 2017)

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BETWEEN

	HKSAR	Respondent
	and
	LAM CHIU-MO (林潮武)	Applicant

________________________

Before:

Hon McWalters, Zervos JJA and Wong J in Court

Date of Hearing:	22 May 2020
Date of Judgment:	22 May 2020
Date of Reasons for Judgment:	4 June 2020

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REASONS FOR JUDGMENT

________________________

Hon Wong J (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was charged with two counts of trafficking in a dangerous drug[1]. On 16 July 2018, he was unanimously convicted of both counts after trial before Deputy High Court Judge Bruce (“the judge”) and a jury.  The dangerous drug involved was respectively 15.9 grammes of a solid containing 15.1 grammes of cocaine for the 1^st count, and 176.2 grammes of a solid containing 166.2 grammes of cocaine for the 2^nd count.  The applicant was sentenced to a total of 11 years and 2 months’ imprisonment.

2.  The applicant applied for leave to appeal against conviction and was refused by Macrae VP on 9 August 2019.  The applicant then filed a Notice of Renewal of Application for Appeal[2] on 15 August 2019.  He appeared in person on the renewed application.

3.  At the hearing of the renewed application, we refused leave, dismissed the appeal and ordered a loss of time of six weeks. We said we would hand down the reasons for doing so in due course.  These are the reasons.

The prosecution case[3]

4.  In the evening on 28 April 2017, a team of Customs and Excise officers were in an unmarked car performing anti-narcotics duty in Tai Kok Tsui, Kowloon.  At about 10:45pm, a private car (JY 384) was seen parked outside a shopping mall.  A man walked to the passenger side, put his hand inside the car for a few seconds and then walked away.  Suspecting that there had been a drug transaction, an officer (PW2[4]) followed the man but soon lost sight of him.

5.  When the car JY 384 was then driven off, PW1[5] and PW2 followed in their car to a location in Canton Road.  The officers pulled up their car behind it.  PW1 approached JY 384 and found the applicant in the driver seat.  He conducted a search of the car.  In a compartment on the driver’s side, he found a clump of white tissue wrapped around a zip-lock bag containing a substance[6], which he described as “white powder” and was subsequently confirmed to be 15.9 grammes of a solid containing 15.1 grammes of cocaine (subject-matter of the 1^st count).  He further found 6 mobile telephones, 16 SIM cards and some memory cards.

6.  He arrested and cautioned the applicant.  When he asked the applicant questions as to what was the substance and to whom it belonged, the applicant answered “I do not know” and indicated that he would not answer any other questions[7].

7.  The applicant did not tell where he lived but an officer managed to obtain his address through checking of his vehicle registration.  The applicant was then taken to his home in Tuen Mun for a search.

8.  The home search was conducted by PW1 and PW3[8] at around 12:30am on 29 April 2017[9].  In the kitchen, PW1 found in a cupboard two plastic containers containing what he again described as “white powder”[10].  It was later confirmed to be 176.2 grammes of a solid containing 166.2 grammes of cocaine (subject-matter of the 2^nd count). Apparatus used for taking dangerous drugs was found near the washbasin[11].  A substantial number of three different types of plastic bags and an electronic scale were also found[12].

9.  When PW1 cautioned the applicant and asked him what the “white powder” in the kitchen was, the applicant said he did not know[13].

10.  The dangerous drug seized was at a later stage put into sealed exhibit envelopes.  The applicant refused to sign on the envelopes.

11.  It was admitted that the retail value of the cocaine was $154,000.  It was also admitted that the applicant’s thumbprint was found on the inner side of the cover of one of the plastic containers containing the cocaine (Exhibit P6) found in the kitchen.[14]

12.  In cross-examination, all the officers agreed that, about a year previously, in May 2016, their team encountered the applicant in Jordan, Kowloon.  While there was variance in the account details each of them gave[15], they agreed that the applicant had made a fuss and had complained about this encounter[16]. They denied the assertions that there was misconduct towards the applicant and that he became a “targeted person” for being difficult[17].

The defence case

13.  At the trial, the applicant elected to testify. No other witness was called.  A case of planting and fabrication was alleged.

14.  In gist, the applicant said that, almost a year before the events in the present case, in about May 2016, he was stopped by a team of Customs and Excise officers in Jordan, Kowloon who wanted to search him.  He alleged there were improper conduct by the officers and a strip-search of him on the street was unjustifiably demanded.  He objected and was uncooperative to the point that there was a fight[18].  From this encounter, this particular team of officers developed a grudge against him and made him a “targeted person”[19].  He alleged that these officers conspired to plant the dangerous drug in the present case on him[20].

15.  He said that, in the present case, during the search in Canton Road, he was deliberately kept away from his car and as a result he could not see the search.  The substance allegedly found was simply produced by an officer[21].

16.  As for the home search, he said he was kept in the lounge and was, again, unable to see the search[22].  He said that the two plastic containers in the kitchen, allegedly containing dangerous drug, in fact contained corn starch which he used for deep-frying meat[23]. He said PW1 showed him the corn starch when it was found and described it as “white powder” since it was actually in powder form[24].  It was his assertion that, after showing him the corn starch, the officers substituted it with dangerous drug.  It was only because of that, the photographs of the relevant exhibits (Exhibit P61) depicted a substance in granular form.

17.  As regards his response to the officers’ questioning both after the car search and the home search, rather than answering “I do not know” to questions as to what was the substance found, he said his response respectively was that he “will not answer”[25].

18.  He said he did tell the officers he lived in Tuen Mun.

19.  He also contended that the officers misconducted themselves, lied about a multitude of matters and were thoroughly dishonest and unreliable.  He said, at Canton Road, the officers’ unmarked vehicle cut in front of his car at an angle, instead of pulling up behind it.  He alleged that during the home search, he was subjected to substantial violence.  He also said he was inappropriately strip-searched at Customs and Excise Headquarters, there was delay in arranging medical attention, and the doctor had been improperly influenced so that the medical report understated his injuries.

Grounds of appeal

20.  As said, the applicant acted in person in renewing his application for leave.[26]  He set out some grounds and arguments in the documents attached to affirmations he swore on 4 and 10 September 2019 respectively[27]. The affirmations were in Chinese and English translations were made available. At the hearing, he made submissions during which certain points in the said documents were reiterated.

21.  As in many appeals where the appellant acts in person, the grounds of appeal in this case are not well structured.  From the papers filed by the applicant, we endeavoured to comprehend what were set out, and crystallized and grouped the points raised as follows:

(1)  tampering of the dangerous drug exhibit[28];

(2)  weight of the drug[29];

(3)  no witness to the weighing process[30];

(4)  an officer had used force on him[31];

(5)  failure to use tamper proof exhibit bags at the scenes[32];

(6)  no signing of notice to person in custody[33];

(7)  this team of officers targeted him because of previous grudge[34];

(8)  there was mis-direction of the judge, and the trial process was not fair to him[35].

Discussion

22.  Points (2), (3) and (5) all relate to point (1), that the dangerous drug exhibits had been tampered with, we considered it convenient and desirable to set out our observations about these three points before considering the tampering of exhibits point.

Point (2): weight of the drug

23.  The applicant pointed out that the weight of the drug stated in a mention hearing was about 30 grammes heavier than that set out in the indictment.

24.  In this regard, counsel for the respondent, Mr Bobby Cheung, SPP, explained that at the mention hearing the Government Chemist certificate was not yet available and the information as to the weight of the seized substance was based on a result obtained by the responsible officer using instruments available to him, whereas the weight as stated in the indictment was based on forensic examination by a chemist in the Government Laboratory.

25.  We accepted this explanation readily, there was no substance in this point.

Point (3): no witness to the weighing process

26.  The applicant complained that the drug weighing process was, as PW3 admitted, carried out by him alone, and not witnessed by the applicant or a senior officer.

27.  Mr Cheung confirmed that PW3 was the officer responsible for weighing of the drug exhibits.  Weighing of the drug was part of the exhibit handling process.  Even if it was carried out by PW3 alone, the important question was still whether the exhibits had been properly dealt with or that there had been tampering as the applicant alleged.  From our analysis of point (1) which will be set out later[36], we were satisfied that the judge had clearly and sufficiently placed the issue before the jury for their determination.

Point (5): failure to use tamper proof exhibit bags

28.  The applicant pointed out that the dangerous drug exhibits were, as PW3 admitted, only put into ordinary transparent plastic bags instead of tamper proof exhibit bags at the scenes, and submitted that it gave rise to opportunity for tampering with the exhibits.

29.  It is normal, and at least the common practice, that dangerous drug exhibit is only put into tamper proof exhibit bag when the responsible officer is in his office and if there is an interview of the arrested person as in the present case[37] after the interview.  PW3 had been extensively cross-examined on his handling of the exhibits[38].  The judge gave a detailed account of how different officers dealt with the exhibits[39] and stressed that “the case for the defence is that all of this particular team were biased against the applicant and all of them could not be trusted”[40].  He also reminded the jury that the applicant refused to sign the exhibit bags.[41]

30.  He concluded this issue by telling the jury:

“All of this rather demonstrates the procedures that Customs & Excise adopt with respect to the handling of exhibits and particularly dangerous drugs. Obviously it will be for you to determine whether the exhibits are handled appropriately and not tampered with. That is very much, I am sure you appreciate, one of the issues you have to think about in this case.”[42]

31.  In our judgment, there is no substance in this point.

Point (1): tampering with exhibits

32.  The thrust of the complaint by the applicant was that the dangerous drug exhibits produced in court were not the substances actually found at either of the two incidents.

33.  The applicant pointed out, and rightly so, that the Government Chemist certificate could only prove that the substances in granular form, which were delivered to the Government Laboratory for examination, were cocaine, but could not prove whether these substances were indeed those found and seized at the scenes.

34.  He highlighted the following matters and submitted that these were indications of tampering with the exhibits, and in particular substitution of the powder form substances (unknown substance in the case of the car search, and as he testified corn starch in case of the home search) with a granular form substances (the later certified cocaine):

(1)  it was his testimony that, the substances allegedly found and shown to him, respectively from his car and his kitchen, were in powder form and not of granular form as depicted in the photographs (Exhibit P61);

(2)  the substance found in the home search was, as he testified, in fact corn starch which he kept in his kitchen;

(3)  when PW1 cautioned him, as shown in his post-record, he described what had been found by him as “white powder”[43].  PW1 did give an explanation for his description[44], the applicant argued that the explanation was unreasonable and not worthy of belief.  He also stated that the witness had never mentioned the explanation in his witness statements;

(4)  the said post-record was counter-signed by three other officers including a Senior Customs Officer; and

(5)  PW1 described in his witness statement the substances in question as “white powder”.

35.  In response, Mr Cheung, pointed out that the matter was fully examined during the trial and in particular PW1 had been extensively cross-examined on the topic.  He submitted that the judge, having given the jury a detailed account of the relevant evidence, had fairly set out the defence case, in particular that what was found was not cocaine and there was a substitution.[45]  He pointed out that PW1 was the only witness who had described the substance in question as “white powder”[46] and the judge had appropriately let the jury decide whether PW1 was “dishonest and criminal, or was white powder simply a lazy description”[47].

36.  The judge had reminded the jury in clear terms of the main features of the defence case[48]:

(1)  this team had a grudge against the applicant[49];

(2)  as a result at various stages of the process they misconducted themselves in a serious way and the officers were determined to fix the applicant upto the extent that “they basically conspired to plant the cocaine”[50];

(3)  whether the drug allegedly found in the car was found in the space in the driver’s side door as the officer said[51] and whether the substance found was cocaine[52];

(4)  what the officers found in his premises was corn starch[53];

(5)  on both occasions he was kept at a place so that the search was concealed from him[54], including that the search at his home was carried on during his toilet breaks[55];

(6)  he had been mistreated by these officers, including infliction of substantial violence on him at his home[56]; and

(7)  the prosecution case relied on the officers to demonstrate the drugs were seized from the applicant and properly handled afterwards but they are not reliable as witnesses of truth.

37.  The judge directed the jury:

“The real issue is whether it is proved that what the officers found in the car was cocaine and later in the kitchen in Tuen Mun. Credibility of the officers has been attacked on a multitude of fronts. The obvious purpose for this is to focus on the issue of whether they can be believed when they testified that the substances they found were cocaine.”[57]

38.  The judge completed the summing up in two days and before the jury was to retire, he repeated the gist of the defence case again to the jury, as follows:

“The defence case is that you simply cannot trust these Customs officers. They are, the defence argues, a terrible bunch of liars. Whatever they may have found in the car of the accused in Canton Road it was not crack cocaine but some other substance. The defence say that the substance that the officers truly found in the house of the accused is nothing more sinister than corn starch and that the corn starch they found in the plastic containers was for use for nothing more illegal than dredging various kinds of meat prior to deep-frying.

The defence case is that all of this is revealed because of the first prosecution witness’s reference to white powder as opposed to the lumpy material which, quote, ‘The crack cocaine is in this case’. The accused told you that he was beaten up in his own house arising out of a visit by him to the toilet.

The defence case is that not only are these officers terrible liars and guilty of substituting crack cocaine for corn starch and whatever it was in Canton Road, but when they got back to headquarters they treated the accused appallingly, subjecting him to no less than four strip-searches, including two, one either side of the Ruttonjee Hospital visit. It is said by the accused that the explanation for the medical report showing only a bruised nose and diarrhoea was that Senior Customs Officer Chan must have biased the doctor against him when he says that Senior Customs Officer Chan spoke to the doctor.

All of this disgraceful conduct which the accused says he was subjected to is, he contends, as a result of him giving the officers an immense amount of grief about 10 months ago before the incident, the subject of the indictment. Customs officers say there was indeed an incident but the misbehaviour described by the accused is simply not true. They reject the notion that the conduct of the accused caused him to be a target. You know where the battle lines so far as that are drawn and I do not propose to go over it in detail.”[58]

39.  We were satisfied that the issue had been sufficiently dealt with by the judge and properly put before the jury.

40.  The applicant also mentioned that he and his legal representative have the right to examine the exhibits and should be given reasonable opportunity to do so.  The applicant was legally represented at the courts below.  There was nothing to demonstrate that if there was any request for examination of the dangerous drug exhibits it had been unduly hindered by the Customs and Excise or the Prosecution.

Point (4): an officer had used force

41.  The applicant alleged that PW2 had used violence on him and referred to the medical report to support this allegation.  There was further allegation that the doctor had been improperly influenced in writing his report of the diagnosis.

42.  There was no dispute that after his arrest in the present case the applicant was taken to the Ruttonjee Hospital for medical treatment[59] and the diagnosis was that he had bruised nose and diarrhoea[60].  The applicant said PW2 admitted having used violence but Mr Cheung pointed out that there was no such admission.  The doctor had not been called as a witness.[61]

43.  In any case, Mr Cheung submitted that the judge had properly dealt with the matter in the summing up[62].  We noted that the judge had reminded the jury of the assertion by the defence of serious mistreatment by the Customs Officers including the infliction of substantial violence by the officers on the applicant at his home, and the submission of the defence that due to the misconduct the evidence of the officers could not be relied upon[63] and there was an element of pre-planning on the part of the Customs as about ten officers were waiting at his home when the applicant was driven there by officers[64].

44.  We found no substance in this point.  The direction given by the judge on this point was proper and adequate, and the relevance of this matter to the key issues they had to decide had been made known to the jury.

Point (6): no signing of the notice to person in custody

45.  The applicant pointed out that he never signed a notice to person in custody, thereby reflecting his inability to properly exercise his rights.

46.  The notice to person in custody was not relied upon by the prosecution at the trial as there was no confession and no issue of voluntariness was taken.  The document was in fact put into evidence as an exhibit by the defence[65].  The document bears a signature of the recipient and therefore, as Mr Cheung submitted, the document had on its face been served on the applicant.  We were told that the document which the applicant refused to sign was in fact the notebook post-record which again contained no confession and was not relied on by the prosecution.

47.  We did not see any bearing of this point to the appeal.

Point (7): previous grudge

48.  As regards the previous event which took place in 2016, again the judge gave the jury a detailed account of the relevant evidence[66] and drew their attention to the following matters in relation to this previous event:

(1)  the applicant became difficult if not angry during the process but the officers denied the allegation of misconduct;[67] and

(2)  there was a substantial difference between the officers as to the scope of their memory of the event[68].

49.  The judge made known to the jury that the purpose of letting them know about this event was that it was an allegation of the defence that as a result of this incident the applicant became a targeted person (as it was put by the defence to the inspector called as a witness).  Further, he made a remark to the jury that “you may think the real allegation was that he was a whole lot more than a targeted person”.[69]

50.  He also said this:

“…the accused gave them a substantial amount of grief in that encounter and the allegation of the dishonesty in relation to that meeting reflects on their honesty in telling you what happened on 28 and 29 April. Also, of course, the accused says they were wholly and totally biased against him and, to use the wonderful Italian word, they had a vendetta against him. That sounds so much more evil than any English word that I can think of. In other words they basically conspired to plant the cocaine.

So members of the jury, the issues you need to determine are really whether the drugs were found by the officers in the car in Tuen Mun and one of the things you will have to think about is basically, ‘Do I trust those officers?’”[70]

51.  We were satisfied that the judge had adequately dealt with this matter and the direction in this respect to the jury was proper, accurate and sufficient.

Point (8): Misdirection

52.  The applicant argued that when the judge gave his summing up, he failed in his duty to summarise the issues and the evidence relating to those issues clearly, accurately and fairly to the jury.  It was his submission that although the judge was entitled to express to the jury his views on the evidence, he ought to tell the jury in clear and unambiguous terms that those were only his views and they could ignore them if they did not agree with them.  He stressed that if there were implausibilities, inconsistencies or illogicalities in evidence, it should be brought to the attention of the jury.[71]  This aspect of the submission accords with established legal principle.

53.  The applicant in particular pointed at certain parts of the summing up which he submitted amount to misdirection.

54.  Firstly, he argued that the judge had improperly made a suggestion to the jury that PW1’s description of “white powder” was only “a general expression or a general language” used by him.  We were told that this expression was initially used by the prosecution and the applicant submitted that this was unfair and not supported by evidence, in particular as PW1 himself did not give such explanation for the description in his post-record, witness statement and testimony.  He further submitted that it was an inherently improbable and irrational explanation.  He criticised the judge for adopting such a suggestion or explanation in his summing up and submitted that this improper direction would undermine his case and would have led the jury into making a wrong finding.

55.  Having perused the summing up, we noted that the judge did not say the description was “a general expression or a general language”, what he said was that the description was “simply a lazy description from which he could not back away”[72].

56.  We further noted that the first time the expression “white powder” was used by the judge, he clearly told the jury that he was using the language of the first prosecution witness and reminded the jury that there is a controversy about that and they should not be fooled or misled by his language.  He reiterated that he was using that phrase for convenience and the jury should not infer from what he was saying that the substance was in fact white powder.[73]

57.  Later, he referred to the substance found as “substance described as white powder”.[74]

58.  Importantly, the judge did highlight to the jury that:

“… one of the issues you will have to think about its whether Customs Officer 07341[75] was actually being accurate when he described what he found as powder and whether this supports the contention of the defence that what was found was not cocaine, certainly not crack cocaine, but there was a substitution.”[76]

It was after this that the judge remarked:

“… another possible conclusion might be that despite the persistent position of Customs Officer 07341 that there was powder amongst the drugs that he seized, it would be open to you conclude that he was simply being a little lazy in the manner in which he described the drugs”[77]

Immediately after this he said:

“… was the reference by Customs Officer 07341 dishonest and criminal or was it simply a lazy description that he just could not back away from? These are matters that you are going to have to determine in your overall evaluation of the evidence and where the truth in this case lies. I am sure you will understand and you will remember this from Mr Tze’s[78] closing submission to you yesterday that this is a very important part of the defence case”[79].

He also reminded the jury that the seized substance had been shown to various officers at the scene and when they testified none of them described it as powder.[80]

59.  Clearly, the reference to “white powder” did not amount to a misdirection and did not have the effect of undermining of the defence case as alleged by the applicant, or of misleading the jury.

60.  Secondly, the applicant stated that in the light of the prosecution closing speech that although the applicant lied in court, the prosecution still had to prove the defendant’s guilt beyond reasonable doubt, the judge ought to have reminded the jury that even if they rejected the defence case, the prosecution was still obliged to prove that the applicant had committed the crime but he failed to do so.  He submitted that the jury might have been misled into thinking that once they rejected his evidence, they could find him guilty directly.

61.  This point had no merit.  If the quotation by the applicant of the closing speech was accurate[81], there was no irregularity on the part of the prosecuting counsel.  In any case, the judge gave the following proper directions:

“if you think what the applicant said is true, or might be true, then he is entitled to an acquittal …”[82];

and

“… if you came to the conclusion that you could not believe what the applicant said about the critical issues in this case, then on no account could you just, by that alone, conclude that he is guilty and I will give you more directions about that in a little while. You would still look to see if the prosecution has proved its case. If you concluded that the prosecution has not proved its case then even if you do not believe the accused, he must be acquitted”[83].

Similar direction was given later[84]. Before the jury was to retire, the judge reminded them:

“As I have already said to you, even if you came to the conclusion that the applicant did not tell you the truth, you must resist the temptation simply to say the case ends right there. If you do come to that conclusion that the applicant did not tell you the truth, you still have to ask yourself whether you are sure that the prosecution has proved its case. Remember, if you are going to draw an inference against the applicant, it must be the only reasonable inference.”[85]

62.  Earlier, the judge had directed in clear terms that “the burden of proof is on the prosecution.  It never shifts from the prosecution.  … the accused does not have to prove anything at all. … In this case the accused did testify but that does not mean he had anything to prove.”[86]

63.  The judge has also directed the jury that:

“The prosecution has to prove its case to a very high standard. It has to prove the accused is guilty so as to make you sure of that. If you cannot be sure that the accused is guilty then he must be acquitted. Another way of expressing the standard of proof is that the prosecution must prove its case beyond reasonable doubt. There is only one standard of proof; that is, proof beyond reasonable doubt and proof that you are so sure are simply different ways of expressing the same concept.”[87]

He also directed the jury that “you cannot convict if your conclusion is that the accused might be guilty or is probably guilty.  The only circumstance in which you could convict the accused is if you think he is guilty, or using the alternative way of saying that, you are satisfied beyond reasonable doubt that he is guilty.  Nothing less than that will do.”[88]

64.  Thirdly, the applicant complained that references in the summing-up to “police drama”[89], “here is where the fun and games”[90], “story”[91] and “assumption”[92] could improperly give the jury the impression that the applicant’s evidence was not credible.

65.  The expression “police drama” was used when the judge was reminding the jury of the applicant’s account of what happened at Canton Road.  It would at once be appreciated why the expression was used when one looks at what the applicant said: the officers sounded their horn and cut in front at something in the order of a 45 degree angle and stopped his car.[93] The judge had also pointed out that this was yet another conflict of evidence between the prosecution and the defence.

66.  The expression “here is where the fun and games” was used when the judge was reminding the jury of the evidence in relation to the applicant’s response to the questioning of the officers.[94]  The complaint by the applicant was that it would give the jury the impression that his response should not be taken seriously and / or it would affect his credibility generally.

67.  The expression used by the judge is rather colloquial for the purpose of giving judicial direction.  Whether it amounted to an irregularity must be examined in context.  It was made in the context of pointing out the conflict of evidence in this regard: the prosecution said the reply of the applicant was “I do not know” whereas the version of the applicant was that he said “will not answer”.[95] It had been made plain that it was for the jury to make up their mind between the two versions, neither of them amounted to admission.  In this connection, the judge pointed out the following matters in his direction which we considered were apt and correct:

(1)  if the jury was to accept the prosecution version, it might just be an expression of ignorance on the part of the applicant, in any case the applicant was under no obligation to admit even if he had the knowledge, and it followed that the response of the applicant added nothing to the prosecution case[96]; and

(2)  in relation to the version of the applicant, by this response he was simply exercising his right of silence and the jury could draw no inference against him simply because he exercised the right.[97]

68.  Putting it in context, we were satisfied that when the judge used the expression, what he intended was to alert the jury that he was to enter an area of controversy.  We did not think it had the adverse effect which the applicant alleged.

69.  Using of the word “story” in a summing up is not uncommon, it was clear that the judge was using the word in the sense of the applicant’s version of events rather than in a more pejorative sense.

70.  The words “assumption” and “assume” were mentioned several times by the judge.[98] The applicant complained that the judge made assumption in his summing up.  This complaint was misconceived.  The judge used the words in the context of giving examples to illustrate how the concept of drawing of inference operated.  He did not make an assumption in relation to the issues or the evidence in his summing up.

71.  There were also general comments by the applicant on the summing up that it was unfair and unbalanced, and there was insufficient guidance on assessment of evidence to the jury.

72.  As Macrae VP said in his judgment refusing leave:

“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 on unmerited.”[99]

73.  We were satisfied that the summing up, read as a whole, was apt and adequate, as well as a fair and balanced one.  The judge had given proper directions to the jury as regards the law, in particular relating to the elements of offence, burden and standard of proof, the verdict to be based only on evidence they accepted and inferences that were properly drawn[100].  He gave a detailed account of the evidence presented by the prosecution and the defence, drawing the attention of the jury to the conflict in evidence. All the essential issues had been sufficiently placed before the jury.  The judge had on occasions expressed a view on certain parts of the evidence, the way he did it was within the proper bounds.  Importantly, he had constantly reminded the jury that they were the only fact-finders and that they were free not to adopt his views unless they agree with them[101]. He properly left all factual matters for the jury to consider and decide, and stressed right at the beginning to them that “you alone decide what evidence you accept, what evidence you do not accept and what evidence you are not sure about when you come to consider your verdict”[102].  We did not think the expressions which the applicant complained against had the effect of undermining the defence case as suggested by him.  Use of such expressions did not taint an otherwise proper direction.  There was nothing to cause us to doubt that the verdict was not safe and satisfactory.

Conclusion

74.  The matters raised by the applicant neither individually nor cumulatively support any valid ground of appeal.  This application for leave to appeal had no merit.  We therefore refused leave to appeal and dismissed the appeal.

Loss of Time

75.  When Macrae VP refused leave, he duly advised the applicant that he has the right to renew his application for leave to appeal and also warned him of the risk that this court may make an order for loss of time.[103] Such risk is also clearly set out both in the Notice of Application for Leave to Appeal and the Notice of Renewal of Application.  At the beginning of the hearing, the applicant was reminded of the risk and he elected to proceed with the application.

76.  In our judgment, nothing stated in the applicant’s paper and his submission disclosed any appeal grounds which were reasonably arguable.  Most if not all of the matters raised had been canvassed before Macrae VP at the first leave application.  The Vice President comprehensively elucidated in his judgment why leave to appeal was refused.  What the applicant put before us revealed no justification for the renewal of application.  It was an unmeritorious application.  Having heard submission from the applicant who insisted that the trial was unfair and what he wanted was simply a fair trial, and having regard to Chau Ching Kay v HKSAR[104], we were firmly of the view that loss of time should be ordered in this case.  Accordingly, pursuant to section 83W(1) of the Criminal Procedure Ordinance[105], we ordered loss of time of six weeks.

(Ian McWalters)	(Kevin Zervos)	(Albert Wong)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Mr Bobby Cheung, SPP, of the Department of Justice, for the respondent

Applicant, acted in person.