HKSAR v. YIP KA MAN

CACC 347/2018

[2022] HKCA 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 347 OF 2018

(ON APPEAL FROM HCCC NO 126 OF 2018)

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REASONS  FOR  JUDGMENT

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

1.  The applicant, who was D1 at trial, and Zango Michel Meneses (“D2”) were tried before Barnes J (“the judge”) and a jury on a joint count of trafficking in a dangerous drug, namely 999 grammes of a solid containing 816 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 7 November 2018, the applicant was convicted and sentenced to 22 years’ imprisonment: D2, on the other hand, was acquitted. The applicant appealed against his conviction only.

2.  On 18 March 2020, leave to appeal against conviction was refused by the Single Judge[1]. On 30 September 2022, we refused the applicant renewal of his application for leave to appeal his conviction and dismissed the appeal, indicating that we would give the reasons for our decision in due course. These are our reasons.

The prosecution case

3.  In view of the way the appeal has been argued, it is important to understand how the case was advanced by the prosecution, how it was met by the defence and the terms in which it was summed up by the judge. From the beginning to the end of the trial, Mr John Hemmings, prosecuting counsel acting on fiat, put his case on the basis that both the applicant and D2 were involved in a transaction over dangerous drugs in the early hours of 5 August 2017 inside a vehicle in Tsim Sha Tsui, Kowloon. At about 1:30 am, a private car was seen to turn at high speed from Salisbury Road into Middle Road in Tsim Sha Tsui, which drew the attention of two police officers (PW1 and PW2), who were on plain clothes patrol in the vicinity. The vehicle came to rest by the side of the road and its headlights were extinguished; however, the engine was kept running.

4.  The two officers approached the vehicle, and as they did so, they observed D2 walk along the pavement towards the private car, walk past the front of the vehicle into the road, open the front passenger door and board the vehicle. They then saw D2 pass something to the applicant and place it on the applicant’s thigh or lap. PW1, but not PW2, then witnessed the applicant unzip a clutch bag he was holding, at which point PW1 opened the driver’s door and switched off the car engine. As he did so, the applicant threw the object which was on his lap onto the floor of the passenger seat. The object was subsequently found to contain almost a kilogramme of a solid containing 816 grammes of cocaine, worth HK$890,109 at street value.

5.  In opening his case, prosecuting counsel told the jury that[2]:

“… the prosecution’s case is that the two of the defendants were obviously dealing together with this large quantity of drugs and … it will be for you to determine whether, in fact, you accept what the police officers say and whether you find their evidence reliable and truthful”.

6.  The transactional nature of the prosecution case never changed. When Mr Hemmings came to give his final address to the jury, he reiterated his position[3]:

“And the prosecution’s case is that when the 2^nd defendant passed it to the 1^st defendant, and the 1^st defendant when he received it and was obviously going to put it in, we say, into that clutch bag, when he threw it to the floor, we say that that is sufficient evidence that they were dealing in it, passing drugs from one person to another”.

Later, he said of the police evidence[4]:

“Anyway, you’ve heard their evidence and you can have a look at the video and you can decide whether you accept the evidence at full value and attach full weight to it. And if you do, then I say to you, well, that’s sufficient evidence that they were trafficking in this very large quantity of dangerous drugs”.

7.  For reasons which will become clear when we address the applicant’s argument, it is worth noting what prosecuting counsel immediately went on to say about the issue of knowledge[5]:

“Of course, the prosecution have to satisfy you that they knew, or must have known, what that bag contained. I’ll come to that a little bit later. Of course we have to establish that. It’s obviously not something -- a person’s knowledge about what is in a particular bag is something we can only really infer from the surrounding circumstances. And I’ll come to matters which will assist you, I think, in that regard a bit later”.

8.  As he had indicated he would, Mr Hemmings returned to the issue of knowledge later in his speech[6]:

“Now, where is the evidence that, even if he did have that with him, that he knew it was dangerous drugs? Well once again, as I said earlier there’s very seldom evidence that you can point to, you have to draw inferences. If he is concealing it in the way that I say he was, obviously he knows that it’s something unlawful.

And nobody has suggested -- if you know the background of the 2^nd defendant, you’ve seen from his interview. He’s a refugee, he has nothing, he doesn’t even have a place to live. If someone is going to entrust $90,000 worth of drugs for him to deliver to someone else, they aren’t going to tell him. They’re not going to – they’re not going to not say, ‘Can you just deliver this package?’, without telling him how valuable it is because he might inadvertently leave it on the counter in the 7-Eleven or something like that.

He knows he has to conceal it and he must have known that it was something of great value. And the fact that he got into the car, the prosecution say, in order to pass it to the 1^st defendant, the 1^st defendant was going to, the prosecution say or you can infer from what PW1 saw, that he was going to put it in the clutch bag, they knew what they were up to”.

9.  Accordingly, from beginning to end in this trial, the prosecution case was that this was a transaction between the two defendants, which ultimately depended upon the evidence of PW1 and PW2, and in which both defendants knew or must have known they were dealing in dangerous drugs.

10.  We should note here that, unlike the applicant who remained silent throughout, D2 had made a video recorded interview (“VRI”), in which he denied having anything to do with the drugs and claimed that he had gone to the vehicle because he had been requested by someone to collect a debt. He asserted that he had been asked by the applicant to take an object wrapped in plastic, but he had refused[7], at which point the police opened the car doors. It is important to understand that the prosecution did not accept these assertions, which were never supported in evidence by D2. Mr Hemmings variously described them as “obviously untrue”[8] and “absurd”[9], and concluded his submissions on the point by saying[10]:

“I would suggest to you, and it’s entirely a matter for you, that everything (D2) said about the reason he was in the car and what happened inside the car is simply untrue.”

It seems, as counsel for D2 evidently understood in his closing address to the jury, that the only reason the prosecution had introduced D2’s VRI was to support the fact that the dangerous drugs were found inside the car[11]; it being the applicant’s case that he had been framed up and the drugs produced from somewhere outside the car by the police.

The defence case

11.  The applicant said nothing under caution at any stage and elected not to give evidence. His counsel, as with counsel for D2, cross-examined PW1 and PW2 extensively, making considerable use of certain CCTV evidence to cast doubt on their accounts of what took place, and thereby suggesting that the drugs had been introduced to the scene by the police. In his closing address, counsel for the applicant told the jury[12]:

“You are not here to think only about (were) the drugs found inside or outside the car? Was it possible for the police officer to (have) brought it all along the way from the police station to the scene with $1 million of drugs. That’s not the question you have to ask yourselves. As I’ve said at the beginning of my submissions, the prosecution always has the burden of proof and the standard has to be sure. That’s what we call ‘beyond reasonable doubt’. I put it in a simple term, you have to be sure.

If you could not be sure that how the drugs (were) found was the same as alleged by the prosecution witnesses, then they fail, the prosecution failed to prove their job, you have to acquit the first defendant.”

Correctly in our view, defence counsel told the jury that it was not for the defence to prove that the applicant had been framed up by the police: it was for the prosecution to prove its case that there was a drugs transaction involving the two defendants, which allegation depended essentially upon PW1 and PW2. Nevertheless, apart from an allegation that his client had been framed up by the police, there was never any other suggestion from the applicant as to how the drugs had arrived in the car.

12.  We should also point out that while D2’s VRI was produced as part of the prosecution case, he too elected not to give evidence, although he did have the advantage of a clear criminal record both in terms of the credibility of his account under caution and his propensity to commit such an offence. In his closing address to the jury, counsel for D2 acknowledged that one of the possible inferences on the evidence was that D2 had indeed brought the dangerous drugs to the vehicle; however, he argued that that was not the only inference[13]:

“So if there are two possible alternatives, right, in this case. The obvious one is that the drugs were in his trousers. That’s one inference. Is it the irresistible inference? You may not find it’s the irresistible inference. There may be other inferences to be drawn in the circumstances. I’ll come back to that later.”

Counsel for D2 duly returned to this topic later by saying[14]:

“Of course, I don’t think you’ll have any problem coming to the conclusion. You cannot be sure of that in the circumstances. And if then you find he didn’t have the drugs in his trousers, then where did the drugs come from? In the car. And if you find that the drugs were already in the car, or you don’t know -- you can find you don’t know -- then he’s not guilty in the circumstances. If they’re already there, he’s -- there’s no suggestion he’s going to take them away or anything else like that. And, therefore, you can’t say he’s trafficking.”

13.  In response to prosecuting counsel’s comments on the question of D2’s knowledge, defence counsel then made the following response to the jury on the subject[15]:

“The other thing I would say is the issue of knowledge. You see, even if he had one way or another carried the drug there must be some proof that he knew it was a drug. Now, it’s been suggested that no drug trafficker, no big drug kingpin would let someone carry something so valuable without telling them it’s a drug. I’m a bit surprised by that because we see every day in courts some of the most horrible people they’ll get their girlfriends to carry things abroad for them, you know, go to another country not telling them there are drugs there. It’s pretty common, to be honest. You’ve got to ask yourself the question, would you really? This man has got no money. He’s got one dollar which you see in his pocket. One dollar, that’s it. Would you really tell him, ‘I’m giving you $1 million worth of stuff to carry around?’ Or would you keep it secret? I would submit to you that it’s more likely you don’t tell him what you – well, it’s just, ‘I need you to deliver a thing’, that’s it, keep quiet. And so there is no proof of any knowledge. He’s never said he knew there were drugs. There’s nothing in the whole case.”

14.  It is important to understand, therefore, that D2’s case was not only that there was insufficient evidence he had brought the drugs to the vehicle but that, even if he had played a part in this transaction, there was no evidence that he knew - indeed, there was a reasonable possibility that he did not know - he was dealing in dangerous drugs. This was an obvious and important distinction between the cases of the two defendants. No similar issue of knowledge of the contents of the packet was ever raised by the applicant’s counsel in his address to the jury; although, as we shall see, the judge nevertheless plainly addressed the issue in her summing-up.

The summing-up

15.  Given the way the prosecution had presented its case, the judge summarised the prosecution case at the outset of her instructions to the jury as a transaction between the two men[16]:

“So what is trafficking in dangerous drugs? That is the charge that they are now facing. In law, trafficking in a dangerous drug has a very wide definition. It includes supplying to others, selling it, importing it or exporting it, or possessing it for such a purpose. So what the prosecution case here, they are saying, is that you believe what PW1 and PW2 told you that they saw this transaction between D2 and D1, D2 passing this object to D1, and if you accept that, that object that had been passed, eventually picked up by PW1, was the drug that (was) later examined by the chemist, they were dealing with drugs. They were passing -- one was giving drugs to the other.

So that basically is what the prosecution is saying. So you can see how important it is for you to decide whether you can accept the evidence of the police officers, in particular PW1 and PW2. Did they actually see this passing over of this object, and was that object, if they (did) see it being passed, was that the one that had been retrieved and eventually examined by the chemist and found to contain almost a kilogramme of powder with cocaine inside? You see the bag, it is quite a big bag; 1 kilogramme – 1 kilogramme is 2.2 pounds. So that basically is the issue you have to decide. Can you be sure that the 1^st and the 2^nd defendants, separately, individually, were engaged in a drug trafficking activity? That is what you have to decide in the case.

The fact that they were there, the fact that the 1^st defendant was a driver, the 2^nd defendant got in the car, they are not an issue at all. No dispute of that. But whether the prosecution can make you sure that they were at that time engaging in a drug trafficking deal; therefore, trafficking in dangerous drugs. So that is just an over -- or introduction, if I can call it that, of what this case is about.”

16.  Later in her summing-up, the judge said[17]:

“The date is not in dispute. Place is not in dispute. The two people are not in dispute. But the only question is, did they, did D1, did D2, engage in trafficking the dangerous drug cocaine, the 999 grammes of a solid containing 816 grammes of cocaine at the time and place as mentioned in the indictment. That is what this case is all about.

So, still, at the end of the day you have to decide, can the prosecution make you sure that they trafficked in the cocaine in this case? I have already explained to you that ‘Trafficking’ has a very wide meaning and of course there is nothing about importing or exporting in this case. So if you accept the prosecution witnesses’ evidence, the prosecution case is that D2 had brought along a package of drugs, because he was seen passing the drug to D1, on the lap of D1, and before they could continue any further, were already interrupted by the police.

So the prosecution is saying that, … PW1 and PW2 saw the passing of this packet or this black object from D2 to D1, and if you believe what the PW1 has said, that -- or both PW1 and PW2 said, seeing D1 throw the object towards the foot-well or somewhere near the feet of D2, and then that PW1 picked it up and that is the only object, nothing else anywhere near the 2^nd defendant’s feet, and that packet was found to contain the powder, which was sealed by the officer in tamper-proof bag, eventually went to be analysed by the chemist, so it must be the drug that D2 had passed to D1, and under the circumstances, at the time of the night, value of the drug, almost $1 million, what else? They must know it was drugs. That is the prosecution case.

Can you be sure? That is the main question. Can you be sure that is really what happened? Can you say that they must be trafficking drugs at the time?”

17.  The judge then dealt in great detail with the evidence and the controversies highlighted by the defence between the testimony of the police witnesses and the CCTV evidence. It is acknowledged by Mr Eric Cheung, with him Mr Jevons Chan, on behalf of the applicant, that these matters were dealt with thoroughly by the judge over many pages in her summing-up. She had urged the jury to look at the CCTV evidence “carefully”[18]; and, indeed, went so far as to tell them that there were areas of PW1 and PW2’s accounts where, “you may think the CCTV does not really support the witnesses’ version”[19].

18.  On the second day of her summing-up, and immediately before sending the jury out to consider their verdicts, the judge repeated her directions that the prosecution case depended upon the evidence of PW1 and PW2, and that they should compare what they had said with what the CCTV evidence showed[20]:

“So, now, bearing in mind that it is for the prosecution to prove the guilt of each defendant, and not for either defendant to prove that he is innocent.

So you have to decide, after considering all the evidence carefully, in particular the evidence of the prosecution witnesses, PW1 and PW2, of what they did, what they saw, and you compare what they said they did and what they said they have seen, with the CCTV footage and you come to your conclusion, whether the prosecution have made you sure that D1 is guilty of trafficking in a dangerous drug, whether the prosecution have made you sure that D2 is guilty of trafficking in a dangerous drug.”

19.  On the question of knowledge, the judge distinguished between proof of trafficking, which depended on the testimony of PW1 and PW2, and proof of knowledge, which relied upon the drawing of an inference from the facts and circumstances as they found them to be[21]:

“PW1 and PW2 say the evidence directly in front of you, say, ‘I saw D2 doing this. I saw D1 doing this.’ So there is direct evidence before you, if you believe them. Up to you whether you believe them or not, as to what actually had taken place, as to the passing and so on, but there is no direct evidence before you about knowledge, whether they know if they had been having this dealing of the package or the black object, whether they knew there was drugs inside.

There is no direct evidence, in the sense that you have not heard D1 say, ‘Oh yeah, I know it was drugs inside’, or D2 saying, ‘Yeah, yeah, yeah, there was cocaine or there was drugs inside.’ There was no direct evidence. So the prosecution is relying on what is called inference. That is, if you believe, if you accept, what PW1 and PW2 (have) told you, there was arrangement; D1 drove the car and stopped there and D2 walked on and then got into the car, sat in the front passenger seat, passed this item over and as soon as the police came, D1 threw this item away and then the item was retrieved by the police and found to contain drugs, quite a lot, almost a kilogramme, and very expensive, almost $1 million.

The prosecution says if you accept what the officers had told you, there cannot be any other inference. The only inference, that they must know that they are dealing with drugs. Of course they know. It is so expensive. You know, people would not just entrust anyone else to go and, ‘All right, go on, deliver the drugs for me.’  Can you draw that kind of inference? It is a matter for you.”

No issue is taken with the judge’s directions to the jury as to how to draw inferences.

The applicant’s grounds of appeal

20.  Mr Cheung has put forward four grounds of appeal, some of which are related and derive to some extent from other grounds of appeal. For example, Ground 1 avers that the jury’s acquittal of D2 and conviction of the applicant are logically inconsistent verdicts. However, even if the two verdicts are not necessarily logically inconsistent, then Ground 1A contends that the applicant’s conviction must have been on a different basis from the prosecution case put against both defendants, thus requiring specific directions on the elements of ‘knowledge’, ‘possession’ and ‘trafficking’ in respect of the applicant. Indeed, as the argument developed, Ground 1 became less of a substantive ground of appeal in its own right, and more the contextual framework, from which Ground 1A derived its significance.

21.  Ground 2 takes issue with an apparent direction from the judge that there was “no evidence from the defence to substantiate the suggestion that the drugs were not found from the car”[22]. This comment, which is said to have been inaccurate and unfair, not only undermined the applicant’s case that the packet of drugs was planted by the police, but obliged the jury to find that the drugs were indeed found in the car, despite the CCTV evidence allegedly suggesting otherwise, and even though the jury had rejected the evidence of PW1 and PW2. This in turn is said to have led to an alternative way of convicting the applicant, on the basis of possession for the purpose of trafficking, for which directions on knowledge, possession and trafficking became essential, but were absent.

22.  Similarly Ground 4, which alleges that there is a lurking doubt as to the guilt of the applicant, depends on the alleged inconsistency of the two verdicts and the assumption flowing from that inconsistency, namely, that the jury did not accept the police evidence; or, at least, the essential aspects of it.

23.  Ground 3 is a discrete ground of appeal and complains that the judge did not direct the jury that they could take into account, when assessing the applicant’s case, those parts of D2’s VRI which “might be favourable to the applicant”. Moreover, the judge did not direct the jury to ignore the inadmissible hearsay, in particular as to what the interviewing officer told D2 during the interview.

24.  We did not find it necessary to call upon Ms Catherine Ko, with her Mr Gary Lam, on behalf of the respondent, but we are grateful for their written submissions.

Discussion

25.  We shall address Grounds 1 and 1A first. In respect of Ground 1, it could not conceivably be said as a matter of fact, let alone law, that the verdicts were logically inconsistent. The roles of the applicant and D2, the backgrounds to their participation in the events that night and the evidence for and against each of them at trial were very different, even though they were indicted as joint entrepreneurs in a single count of trafficking in dangerous drugs.

26.  The applicant was a local man who had driven the car to the scene in order obviously to meet somebody, who turned out to be D2. Having pulled up at the side of the road, he extinguished the car’s headlights but left the engine running, clearly anticipating that he would not be there for long. The CCTV evidence, which we have watched at Mr Cheung’s invitation, made it quite plain that the applicant’s purpose of driving his vehicle to the scene was in order to meet someone. Almost 1 kilogramme of cocaine solid was subsequently found in the car he was driving. He was arrested but never made any response, as was his right, to explain the circumstances of his presence in a car in the early hours of the morning, with almost HK$900,000 worth of dangerous drugs, which police officers had seen him jettison onto the floor of the vehicle. His defence at trial was that he had been framed up by the police and drugs effectively planted in his car.

27.  By contrast, D2 was a homeless, indigent, non-refoulement claimant of good character from Mozambique. He had given a VRI to the police under caution, which was before the jury, in which he had claimed that he had approached the driver of the car in order to recover a debt on behalf of someone; however, he was asked by the applicant to carry something else and refused the request. He neither admitted being party to a drugs transaction, nor seeing any drugs; nor by necessary implication, to knowing about the drugs. As we have already observed, there was a very live issue, engaged by both prosecuting counsel and counsel for D2 (but not by the applicant), as to D2’s knowledge of the fact of dangerous drugs in the packet, whether he had been asked to deliver it to the applicant or not.

28.  Whilst Mr Cheung conceded before us that the judge had given adequate directions on the law in respect of a transactional case of trafficking between the applicant and D2, his argument came to this: the jury acquitted D2, therefore the jury cannot have accepted the transactional nature of the case put forward by the prosecution; accordingly, there was no evidence as to where the dangerous drugs came from or how they were connected to the applicant; thus, any alternative basis for conviction, such as possession for the purposes of trafficking, on the applicant’s part required specific directions from the judge as to possession, knowledge and trafficking; however, the judge did not give such directions.

29.  Mr Cheung postulated a number of alternative ways of viewing the evidence, once the jury had rejected the transactional allegation, as he assumed they must have done. He suggested the jury may have accepted what D2 said in his VRI, and that rather than delivering dangerous drugs to the applicant, he may have refused to receive the drugs from the applicant. Quite apart from the fact that D2 did not give evidence in support of his assertions, which, as we have pointed out, were never accepted by the prosecution, who had described them as “absurd” and “untrue”, we do not see how this assists Mr Cheung’s argument. If the jury were to have found D2’s assertions somehow true or may have been true, notwithstanding that he never gave evidence in support of them, they would have disbelieved PW1 and PW2’s crucial evidence of seeing D2 place the packet on the applicant’s lap. They could not then have accepted the transactional case presented by the prosecution and would have acquitted the applicant as well.

30.  Then, Mr Cheung argued that the dangerous drugs may have already been in the car, which had simply been lent to the applicant by the owner of the car, who was his friend. The notion that the applicant’s friend might have deliberately or inadvertently left a kilogramme of cocaine solid, worth almost HK$900,000, in his car, which he then allowed the applicant to drive unwittingly around Tsim Sha Tsui in the early hours of 5 August 2017, was utterly fanciful and speculative. Not surprisingly, it was not a suggestion which the applicant’s counsel at trial saw fit to make to the jury.

31.  Moreover, as with a possible defence derived from D2’s assertions in his VRI, which, it should be remembered, could not be evidence against the applicant in any event, neither version was the applicant’s actual defence. Rather, his case was that he had been framed up by the police, who introduced the dangerous drugs to the car.

32.  There is, as we have observed before on many occasions, a tendency for appellate counsel who were not involved in the trial, who do not fully appreciate the real issues with which the parties were actually engaged and who were not privy to the tactical decisions being made by defence counsel as the trial progressed, to conjure up alternative ways of looking at the evidence, and then criticise a summing-up for not giving directions to deal with such alternative scenarios as they imagine them to be. This recurring problem was addressed by the Court of Final Appeal in HKSAR v Chau Yui Ming[23], where Ma CJ said:

“30. As set out above, it was the contention of the appellant in the present case that all possible alternatives which are open on the evidence or all possible scenarios submitted by the defence in the trial should be placed before the jury, and in order to enable a jury to be so directed, a Judge may have to order the indictment to be amended. This, it will be recalled, was essentially the view taken by McWalters JA, referring to ‘secondary’ defence strategies. The only limitation, it was submitted, was that there must be some evidence in support of such possibilities that was not ‘incredible or tenuous or uncertain’.[24]

31.  In my view, some care needs to be exercised when defining the obligation to direct alternative verdicts. It is unhelpful, not to say confusing, for a Judge to have to direct a jury to alternative options based on vague expressions such as ‘possible alternatives’, ‘possible scenarios’, ‘alternative defence scenarios’ or ‘secondary defence scenarios’. This was the type of expression used by McWalters JA in the passages set out above.[25] Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury. Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial. In the passage from the judgment of McWalters JA, he refers to the appellant’s ‘primary defence’ and ‘secondary defence’. This was, with respect, confusing. There was no alternative defence run by the appellant: the only defence he ran was that he had nothing to do with drugs and that he was framed. The other scenarios referred to by defence counsel in his final submissions and by McWalters JA were not alternative defences at all but were mere speculations.”

33.  In our judgment, instead of resorting to ingenious and rather speculative assumptions, the most obvious way of looking at the present appeal, and the most obvious explanation, if one were needed, for the jury’s different verdicts, was that the jury accepted the essentials of the prosecution evidence that there was indeed a dangerous drugs transaction afoot in the early hours of 5 August 2017, but found a reasonable doubt about D2’s knowledge of what he was dealing with. For, had the jury considered it a reasonable possibility that the drugs might have been introduced into the car by the police and the applicant effectively framed up by them, they would inevitably have acquitted the applicant. That was what the whole case was about and the issue on which it was fought by the applicant. However, the jury could still have accepted the transactional nature of the prosecution case, which is the only one they were asked to consider by either the prosecution or the judge, and acquitted D2 on the basis that from the circumstances and his background, he may not have realised he was dealing with dangerous drugs.

34.  Mr Cheung went so far as to submit, however, that an acquittal of D2 on the basis of his lack of knowledge was “not a likely scenario on the evidence, as it was directly contradictory to the CCTV footage”[26]. We cannot agree. The CCTV evidence did not affect the issue of D2’s knowledge, unless, of course, one were to accept that the drugs were, or may have been, introduced into the car by the police and never, therefore, at any stage had anything to do with D2 (or the applicant). However, we must again point out, as indeed Mr Cheung himself accepted in argument, that the judge’s summing-up on the effect and impact of the CCTV evidence on the testimony of the police witnesses was both comprehensive and fair. Yet, the jury convicted the applicant, which clearly demonstrates that they must have accepted the transactional nature of the prosecution case so far as he was concerned; while they acquitted D2, following a direct appeal to them by his counsel that he may not have known what he was dealing with, “even if he had one way or another carried the drug”[27].

35.  Mr Cheung’s submissions in respect of Ground 1 and Ground 2 rely on certain negative assumptions about the prosecution evidence, which we do not accept. Nor do we think, did the jury, notwithstanding the judge’s repeated caution as to how they should examine the evidence of PW1 and PW2, in conjunction with the CCTV evidence. The case they were asked to consider in respect of trafficking was that there was a transaction in which dangerous drugs were passed from D2 to the applicant: that was the only case they were asked to consider by the prosecution and, for that matter, by the judge. Looking at the CCTV footage, it seems to us that that is exactly what it was.

36.  As for the knowledge of what they were dealing with, once the jury accepted the police evidence, they were entitled, as the judge directed, to draw an inference of knowledge from his actions and the surrounding circumstances against the applicant. However, it did not necessarily follow that they had to draw the same inference of knowledge against D2. We find no basis for the complaint that the verdicts were inconsistent; nor do we accept that there was any other proper basis, given the way the case was fought and the jury instructed, for directing the jury in respect of some alternative form of trafficking. We reject Grounds 1 and 1A.

37.  We can, therefore, very quickly dispose of Ground 4: there is no sensible argument that there was a lurking doubt about the correctness of the verdict against the applicant in this case. In our assessment, there was clear evidence of a transaction involving nearly a kilogramme of cocaine solid in the early hours of the morning, while the different verdicts were perfectly reconcilable given the judge’s directions.

38.  Ground 2 is at best an argument about semantics: at worst, a misreading and misunderstanding of the summing-up. Mr Cheung accepted in argument before us that if instead of the judge saying, “So there is no evidence from the defence to substantiate the suggestion that the drugs were not found from the car”, she had used the word defendants, he would have had no complaint. In fact, the point the judge was making at this particular stage of her summing-up was that there was a distinction between a statement made by a witness in evidence and a suggestion made by counsel with which a witness did not agree[28]:

“Now, I must remind you, a suggestion, when a suggestion is made to the witness by the defence, and that witness disagrees with that suggestion, the suggestion itself is not evidence before you. The (content) of the suggestion is not evidence before you, just by denying.

So, for example, there is a suggestion that the dangerous drugs (were) not found inside the car. That was disagreed by actually all prosecution witnesses. So there is no evidence from the defence to substantiate the suggestion that the drugs were not found from the car. There is no one come up to say positive(ly), ‘I tell you, the drugs did not come from the car. The drugs came from the police officer’s rucksack.’ There is no such evidence, because the officer disagreed. So bear that in mind.”

39.  The jury could not have been remotely misled by this matter, which the judge was using as an example to illustrate the difference between evidence and mere suggestions in cross-examination. The whole case was fought on the basis that there was no transaction between the applicant and D2 because the drugs were introduced into the car by the police themselves. It is preposterous to suggest that the judge’s illustration would have obliged to jury to reject the interpretation of the CCTV footage advocated by the defence, simply because a prosecution witness did not accept in the witness box that the police had planted the drugs on the applicant. As we have pointed out, the judge went to considerable lengths to encourage the jury to examine the CCTV evidence in deciding whether they could rely on the truth of the police evidence. There is nothing whatsoever in this ground of appeal.

40.  Finally, in respect of Ground 3, we fail to see how any of the assertions in D2’s VRI, to which he did not speak and upon which he was not cross-examined, were advantageous to the applicant, whose case it was that he had been framed up by the police who had introduced a bag of drugs into the car he was driving. D2 had asserted that the applicant had tried to give him a black object which he refused to receive. The jury were told that they could not rely on anything D2 had said in his VRI against the applicant[29]. Yet, it is said, the jury might have relied on inadmissible hearsay in D2’s VRI, or they might not have taken into account D2’s exculpatory account in the applicant’s favour. When one appreciates the essence of the case D2 was asserting, and what was left of it which could not be used against the applicant, the argument is wholly unrealistic and devoid of common sense.

Conclusion

41.  It was for these reasons that leave to appeal against conviction was refused and the appeal dismissed.

Ms Catherine Ko DDPP and Mr Gary Leung ADPP (Ag), of the Department of Justice, for the Respondent

Mr Eric TM Cheung, solicitor advocate and Mr Jevons CH Chan, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the Applicant