Case Detail

CACC 350/2019

[2023] HKCA 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 350 OF 2019

(ON APPEAL FROM HCCC NO 251 OF 2019)

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BETWEEN

	HKSAR	Respondent
	and
	Au Kwai Sun (歐桂新)	Appellant

________________________

Before:

Hon Macrae Acting CJHC, Zervos and M Poon JJA in Court

Date of Hearing:	23 September 2022
Date of Judgment:	23 September 2022
Date of Reasons for Judgment:	21 March 2023

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REASONS FOR JUDGMENT

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

1. The appellant appealed, with leave of the Single Judge granted on 1 November 2021[1], against his conviction after trial before Campbell-Moffat J (“the judge”) and a jury, in respect of one count of trafficking in a dangerous drug, namely 187 grammes of a crystalline solid containing 165 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Count 1); and one count of possession of dangerous drugs, namely 0.07 gramme of a solid containing methamphetamine and 0.03 gramme of a solid containing methamphetamine and cocaine, contrary to section 8(1)(a) and (2) of the same Ordinance (Count 2).

2. On 23 September 2022, having heard argument from the parties, we dismissed the appeal and said we would hand down our reasons in due course. These are our reasons.

The prosecution case

3. The prosecution presented its case as a stop and search operation by two police officers (“PW1” and “PW2”), who were on routine patrol in plain clothes. At 07:54 am on 2 January 2019, in the vicinity of Shek Lei (II) Estate, Kwai Chung, New Territories, the two officers intercepted the appellant and found inside a sling bag he was carrying a crisp tube containing the subject matter of Count 1. Following his arrest and caution, the appellant was asked by PW1, “What is this tube of stuff?”; to which he responded, “It was ‘Fei Yue’ (‘Fat Fish’ in English) who owed me $2,000 and asked me to take this tube of stuff”[2]. The course of the arrest and caution and what was said by the appellant in response were recorded “right away” at the scene by PW1 in his notebook and at the same time signed by the appellant in confirmation[3].

4. Following his arrest, the appellant was taken to his home for a search, where, in certain smoking apparatus, PW2 discovered the Ice in Count 2, which the appellant admitted under caution was for his own consumption. The appellant was again arrested and cautioned for possession of apparatus fit and intended for the smoking of dangerous drugs and for possession of Part I poison, whereupon he made certain responses which were then and there recorded in PW1’s notebook and signed again by the appellant in confirmation[4].

5. The appellant subsequently participated in a video-recorded interview on 4 January 2019, during which he elected to remain silent[5].

6. It was an admitted fact that, “in the ‘call record’ in the [appellant’s] mobile (tele)phone, Exhibit P17, Chinese characters 魚老板 (‘Fish Boss’ in English) and a telephone number were located”[6]. The computer examination result in respect of the appellant’s mobile telephone was also admitted into evidence by agreement, showing that his telephone and two SIM cards had been examined by another police officer and the data viewed by PW1 on 18 April 2019, “with no relevant evidence found therein”[7]. PW1 said in evidence that when he inspected the contents of the telephone he only looked at the photographs and videos for anything that could be related to drug trafficking activities[8]: he did not look at telephone contacts and call records[9]; nor did he look for any communication records between the appellant and Fat Fish, because the appellant did not mention to the police receiving instructions to pick up the tube from anyone by the name of Fat Fish by telephone[10].

The defence case

7. The appellant elected not to testify or call evidence. However, the defence presented its case as a ‘set-up’ by the police[11], in which the appellant was intercepted before he could get hold of the tube found on the grass near him. It was contended that although the appellant had implicated Fat Fish in his out-of-court statement, the police had tried to protect Fat Fish and did not properly investigate his case. The further suggestion was that Fat Fish and Fish Boss were the same person[12].

Matters in the trial

8. For the purposes of this appeal, it is relevant to highlight two matters which emerge from the proceedings, namely: (i) the judge’s ruling on admissibility in respect of the contents of appellant’s mobile telephone and the requirements of section 22A of Evidence Ordinance, Cap 8 (see Ground 2 infra); and (ii) the five occasions in which the judge intervened during the trial proceedings (see Grounds 4 and 12 infra).

The admissibility issue

9. The issue of admissibility arose during the course of the cross-examination of PW1 by the defence. Following a chain of questions and answers related to PW1’s inspection of the appellant’s mobile telephone, Mr Wong, who acted for the appellant at trial as he does at this appeal, requested that PW1 look at the appellant’s mobile telephone in the presence of the jury[13], the purpose of which, so he explained (in the course of legal argument[14]), was to establish the existence of certain call records between the appellant and Fish Boss in the mobile telephone; as distinct from proving the truth of the date or time of the telephone calls[15]. It is in this regard pertinent to note, as the judge herself noted, that “Mr Wong has accepted that he does not intend to prove Fish Boss is Fei Yu or will call other evidence on the point”[16].

10. The judge did not accede to the defence request and gave a reasoned ruling as follows[17]:

“The issue before me is one of admissibility, rather than relevance. The defence knowing they wish to adduce this screenshot have not sought to do so in compliance with the Ordinance. Defence counsel was no doubt relying upon PW1 who was the arresting officer agreeing that he had access to the telephone and seen the screenshot in question.
As a percipient witness of what he saw when he accessed the mobile phone on 18 April 2019, he could at least have agreed that the screenshot was the same on that date as that on the mobile phone before the court. Even so, defence counsel could not have relied upon it as evidence of the truth of the contents of the screenshot as it did not comply with section 22A. As it happens, PW1 gave evidence that he did not access the call records of the telephone and so is not a percipient witness as to what was on the call records at any stage, let alone at the relevant time.
It goes without saying that he is also not an expert witness. However, Mr Wong wishes to ask him to open the mobile phone, enter the call record for Fish Boss and agreed that what he sees today is the same as that reflected upon MFI-4, which was the screenshot taken by his instructing solicitor.
I add there is no evidence that this was the case of the screenshot being taken, but for the sake of this argument I am going to assume that that evidence can be adduced in due course without prejudice to any party. The difficulty Mr Wong faces is that PW1 could only agree that the screenshot is the same on the telephone today as the screenshot is on the document before him.
When tasked with the raison d’être for his cross-examination upon this point, Mr Wong stated that he merely wished to put to the witness that he had deliberately not looked at the call records because he was afraid of finding something in relation to Fei Yu, a person whom the defendant had said upon arrest had given him the tube which was found to contain the dangerous drugs and of which he had no knowledge.
The court suggested that could be put to the witness regardless of what was on the mobile phone and there would be no need or any prejudice in not putting the call record. When pressed, Mr Wong submitted that he wanted the fact the call record showed calls on the relevant day but suggested that this was not for a hearsay purpose, which it clearly is. What defence counsel wants is to show that someone called Fish Boss, not Fei Yu, called the defendant on 2 January and that the defendant called him.
There can be no other reason for wishing to adduce this evidence, and if it had been properly adduced in accordance with the Evidence Ordinance no complaint could be made per se. It may be that the fact of a call between two numbers and the time of a call between those numbers could have been properly admitted, if not the identity of the makers and receivers of those calls. That would have been a matter of inference.
He would need more in order to be able to ask a jury to infer that this call record did, indeed, refer to the Fei Yu mentioned on arrest by the defendant. He would have needed a great deal more, but that would have been a matter for the defence.
There is no doubt that records contained within a telephone and of calls or other communications made by the device are in the form of digital evidence that is computer produced. Whilst a video or a photoshoot of an event stands on all fours with other video or photographic recordings, the date and time of such records is digital and subject to alteration by reason of the working of the system employed or less likely by reason of human malfeasance or error. That is why section 22A and B have come into being, albeit that they are too, perhaps, in need of updating given the advances in technology and the manner of the use of mobile phones in this day and age.
Without going into too much detail at this stage of proceedings this part of the Evidence Ordinance allows evidence to be adduced in circumstances where the court finds it safe to do so, and it lays out the preconditions for such adduction. Thereafter, it is a question of weight. That is quite a different issue from the purpose for which it is adduced and, try as I may, I cannot but find that defence counsel wishes the evidence before the court to show that calls were made at a certain time and date between these two numbers when he has not established the efficacy of the system to show that that was, indeed, the case. There is nothing from which, under section 22B, the court can reasonably infer that that was the case.
I am left with whether to exercise the court’s discretion to allow what I consider to be inadmissible evidence before a witness and jury. I do not see how the defendant is prejudiced by not being able to put the screenshot. The defence case can still be put. Mr Wong has accepted that he does not intend to prove Fish Boss is Fei Yu or will call other evidence on the point. On what basis is it admissible if he is not going to suggest that they are one and the same?
He will not be able to suggest to the jury they are one and the same. Even if the court were to allow the screenshot in on a provisional basis, the defence cannot make it good, and the exhibit would have to be extracted from the jury and the subject to a suitably worded direction. As presently advanced, I will not allow the screenshot to be put. It is a matter for the defence counsel if he wishes to advance this point again on further consideration if circumstances change…”

As it turned out, the matter was never raised again by defence counsel.

The judge’s interventions

11. As noted earlier, there were five occasions where it is alleged that the judge inappropriately intervened during the proceedings. These occurred when defence counsel was either cross-examining prosecution witnesses or delivering his closing address to the jury.

12. The first intervention took place when the judge asked the jury (and PW1) to leave the courtroom[18] so that she could hear legal argument on the issue of admissibility in their absence.

13. The second intervention arose when Mr Wong suggested to PW1 that he had failed to advise the appellant of his right, amongst other rights as a detained person, to refuse to be interviewed. The following exchange between the judge and defence counsel took place[19]:

“[Q: .…] Let me ask a question. At that time, well, for that arrangement or for that sitting down you told him a number of things will be done. You never tell him he has the right to refuse to be interviewed, right?
COURT: Sorry?
MR WONG: He has the right to refuse to be interviewed.
COURT: At that point in time?
MR WONG: Yes, at that point in time when he sat down.
COURT: Prior to reading out the POL 153?
MR WONG: No, at the time of the interview, the beginning of the interview.
COURT: So you’re suggesting that this officer when he takes a defendant into the room to deal with the documentary administration...
MR WONG: Yes.
COURT: ... he has a duty to tell the detained person that he has a right not to be interviewed at that point.
MR WONG: Yes, yes, he...
COURT: Not that he’s being interviewed, one might add, is he?
MR WONG: Well, he had a duty to remind the person that he has the right to refuse to be interviewed. That’s my point.
COURT: Refuse to be interviewed over what? He’s not being interviewed. He’s going through the documentary procedure of a detained person. What is he doing, you say?
MR WONG: The way that that was done, of course, is by way of an interview.
COURT: It’s not an interview. He’s writing out a post-record and he then asks the detained person whether he’s prepared to admit that post-record or not. That’s not an interview. Sorry, Mr Wong. I apologise, I may not be following you.
MR WONG: Well, my point is...
COURT: What regulation are we talking about now?
MR WONG: The way it was done, of course, according to the officer, I invite him to sit down, explain to him what will be done.
COURT: Yes, yes.
MR WONG: So there will be a number of things done.
COURT: Yes.
MR WONG: So that, according to my mind, is an interview.
COURT: Well...
MR WONG: You can’t say that is not an interview.
COURT: ... I don’t think that’s correct.
MR WONG: Well...
COURT: There will ultimately be a video-recorded interview and, of course, all of the rules apply to that about which you take no issue.
MR WONG: I can leave it for submission, but I still want to put to him, ‘You never told him that he can refuse’.”

14. At that point, the judge asked the jury (and PW1) to leave the courtroom before proceeding to hear legal argument on whether the post-record procedure could be equated with an “interview”[20]. In due course, the judge disallowed the line of questioning relating to the officer’s failure to advise the appellant of his alleged right to refuse to be interviewed (see Ground 3 infra).

15. The third intervention took place in the course of the cross-examination of PW2, following numerous questions by defence counsel concerning the police operation. The following exchange, in the presence of the jury, took place[21]:

“Q. Did you at that time know what was the purpose of the walk even at that time?
COURT: Shall we call it a patrol, seeing as that’s what he said it was?
MR WONG: Yes. Maybe I ask further.
COURT: Yes. What was the purpose of the patrol?
Q. What was the purpose of the patrol? I mean simply walk together or what?
A. That is to conduct an anti-dangerous drugs patrol.
Q. Who told you so?
A. Because generally, when we go out to have a walk, that is, to patrol, we would go to conduct anti-dangerous drug patrol.
Q. Nobody told you so.
COURT: They do for a living.
MR WONG: No, he -- I’m interested to find out anybody told him what was...
COURT: Nobody has to tell me to come in here and being a judge, Mr Wong.
MR WONG: No, he simply say that his see so understanding is to have what means to conduct anti-drug...
COURT: Yes, because that’s what they do for a living.
MR WONG: Well, I have to ask. I can’t assume.
COURT: Well, that’s what they just -- he’s just said, ‘That’s what we do’, and you’re asking him again, ‘Nobody needed to tell you’, but that’s what he does, he conducts antidrug patrols.
MR WONG: I have to ask. I don’t accept what he say(s), so I have to ask. He has said something which is -- may or may not be true. At the end of the day...
COURT: Well, if you’re going to put to him he wasn’t conducting an anti-drug patrol...
MR WONG: No, no.
COURT: But I have a feeling that your case is that he was conducting an antidrug patrol.
MR WONG: No, my case is -- maybe I put to him later on.
COURT: Yes.
MR WONG: I don’t want to disclose at this stage.
COURT: All right, anyway.
Q. So ...
COURT: He wasn’t -- he didn’t need to be told.”

In answer to a question from this Court during his oral submissions, Mr Wong maintained that this was the worst of the judge’s inappropriate interventions, because it gave the impression that defence counsel was talking nonsense.

16. PW2 later confirmed making a witness statement on 6 January 2019, recording the events of the police operation. The fourth intervention emerged in the following exchange[22]:

“Q. Now, what I’m looking at the copy of the statement, you simply say that when you saw the defendant you describe him as someone who look suspicious.
COURT: Just a minute. Read from the beginning of the paragraph. I don’t know -- sorry, I don’t know if it’s different in Chinese. All right.
MR WONG: In Chinese exactly the...
COURT: Because I presume you -- are you reading the English or the Chinese witness statement?
MR WONG: The Chinese say is exactly what the learned interpreter interpreting.
COURT: So you...
MR WONG: The English, of course, is not...
COURT: I’m asking you if you’re looking at it in Chinese or at it in English, because they are translations but they are sometimes done just slightly differently.
MR WONG: I see. I can put the Chinese to him.
COURT: So I’m just giving you the benefit of the doubt, Mr Wong, that you might have been looking at the Chinese version when you were putting your question. All right?
MR WONG: Yes.
COURT: Because you were trying to suggest in that -- or that question now to this officer...
MR WONG: Yes.
COURT: ... that ...
MR WONG: I understand. I better put to him the Chinese statement that he have written.
Q. First of all, do you agree that you wrote the statement in Chinese?
INTERPRETER: Sorry, my Lady, I think the -- both the Chinese and English is...
COURT: Is it the same?
INTERPRETER: ... the same. I think the learned counsel might be misled because there was some discrepancy...
COURT: Yes, absolutely. Yes, that’s -- I’m giving him the opportunity to correct himself without...
MR WONG: It’s okay. I better use the Chinese term to ask him.
INTERPRETER: Sorry, sorry.
COURT: Sorry, Mr Liu. I know, keen and eager, Mr Liu. But the way you’ve asked that question is unfair. I’m going to put it that far. Read it again...
MR WONG: Okay.
COURT: ... before you try to criticise this witness ...
Q. First of all, can you confirm that when you wrote the statement you wrote in Chinese?
A. Yes.
Q. And in your statement when you describe the first time you saw the defendant you use the term that ‘形跡可疑’ to describe him.
COURT: Sorry, and what does that mean in my language?
MR WONG: That means well, my suspicion. Suspicious. That’s what I think is the translation.
COURT: Sorry.
Q. Right? You can look at it if you can’t...
COURT: I’m reluctant to ask the ladies and -- the lady and gentlemen of the jury to exercise their legs again in going in and out, but you are close to having this putting in this witness statement because it would seem to me ...
MR WONG: No, I just want him to confirm.
COURT: ... that you are not putting the whole ...
MR WONG: No, I’m not putting the whole -- I’m not going to ask him the whole statement. I only ask him bits and pieces.
COURT: No, well ...”

It is pointed out that the jury were only excused from the courtroom after the above exchanges had taken place.

17. The fifth intervention took place in the middle of Mr Wong’s closing address to the jury, when he requested that the appellant be given a toilet break[23]:

“[MR WONG: …] I’m sorry. My client want(s) to obey the ...
COURT: He’s desperate it looks like.
MR WONG: Yes. He...
COURT: How much longer are you going to be, Mr...
MR WONG: Maybe a bit longer. I would ask that he be allowed to go to the toilet first, if I continue. I can’t say, I can only -- I can finish in 10 minutes.
COURT: Well, you just sit down, we’ll wait.
MR WONG: Okay. Thank you.
COURT: Just sit down and collect your thoughts for a moment, Mr Wong.
MR WONG: I think I’m quite confident to finish by -- before lunch.
COURT: I thought you were about to finish.
MR WONG: Yes, yes. Well, I have to move on to the premises.
COURT: You seem...
MR WONG: I’m only talking about...
COURT: I thought you said, ‘This is my whole case’. So all right. Don’t worry about it, let’s just wait for your client.
MR WONG: I’m still talking what happened at the scene.
COURT: Yes. Yes, Mr Wong.
MR WONG: Yes, thank you.
COURT: Yes, Mr Wong.
MR WONG: Yes, thank you. I was...
COURT: Talking about females and embarrassment.”

Summing-up

18. So far as the significance of the admitted fact that the Chinese characters for Fish Boss were located in the appellant’s mobile telephone, and what impact this evidence might have had on the defence case, the judge directed the jury in these terms[24]:

“… Quite apart from the whole issue about whether somebody deliberately did not investigate it, that bit apart, what you have got in terms of evidence for you to consider are three characters -- are three characters. I cannot help you at all on that because I certainly do not know anything about ‘Yue’ and whether it has got some special meaning other than fish and whether in the context of Fish Boss and Fat Fish, there is something different, I cannot help you at all. That is why you are here and you will decide what you make of that having listened to the way the evidence has gone and listened to the cross-examination of that …
… All you have in evidence is the fact of the name in the phone in the three characters and the fact that it is not ‘Fat Fish’, but it is ‘Fish Boss’. That is all you have. You have nothing more and you may not speculate about it. You cannot guess that there must have been something else. You just have the Admitted Fact that there is a three-character name with the word ‘Fish’ in it. What you make of that is up to you but I am trying to explain to you not to be drawn into speculating and guessing because you do not have that. And if it was to go before you then it was within the wherewithal of these counsel to bring it before you and it has not been.
That is all you have got, just an admission that the phone has this on it and no more. …”

19. On the issue of the right of silence, the judge directed the jury that “[t]he exercise of the right to silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience”. However, criticism is levelled against her direction which then followed (see Ground 12 infra). The impugned direction reads[25]:

“When he was first asked what the stuff was, before he was arrested and cautioned, he made no response. The response was not, ‘Oh, I thought it was money’ or ‘Oh, I thought it was crisps.’ Always bearing in mind that he does have a right -- he has a total right to say nothing but circumstantially this is what occurred. His answer upon arrest and caution could be seen as an admission against interest. In other words, a form of confession depending upon how you read it when he said, ‘It was Fei Yue who owed me 2,000 and asked me to take this tube of stuff.’ That is a question of interpretation for you.”

The grounds of appeal and submissions

20. As we have said, leave was granted by the Single Judge on five grounds of appeal, namely Grounds 2, 3, 4, 12 and 16, which may be summarised as follows:

(i)  Ground 2 complains that the judge erred in refusing to allow defence counsel to adduce the whole of the call records in the appellant’s mobile telephone. Mr Wong submits that the call records would show that Fish Boss was connected with trafficking activities, which was a matter the appellant had told the police under caution, but which resulted in no investigation on their part[26].
(ii)  Ground 3 should be read together with Ground 4. Whilst Ground 3 alleged that the judge erred in refusing to allow Mr Wong to cross-examine PW1 about his failure to remind the appellant that he had a right to decline to participate in the “interview” at which he signed the notebook entries, it is pointed out that in granting leave to appeal on this ground, the Single Judge considered, “this is more of an issue relating to the complaint about the judge’s interruptions during the cross-examination of PW1 and PW2 as articulated under Ground 4. To this extent, I am satisfied it is reasonably arguable”[27].
(iii)  Ground 4 alleges that there were excessive interruptions by the judge (identified at [11]-[17] supra)  during the cross-examination of PW1 and PW2, as well as during defence counsel’s closing speech. Mr Wong submits that, as a result of these interruptions, the appellant was deprived of a fair trial.
(iv)  By Ground 12, it is complained that the judge unfairly suggested to the jury that the appellant could have said something to the police about the tube of crisps, thus undermining his right of silence.
(v)  Ground 16 is a final, general ground of appeal that the convictions are unsafe and unsatisfactory, which relies upon one of the other substantive grounds being made out.

The respondent’s submissions

21. In respect of Ground 2, Mr Pierre Lui, on behalf of the respondent, submitted that the judge correctly refused the defence application on the basis that PW1 had not in fact seen the appellant’s telephone call record. In any event, if the evidence was sought to be admitted for the purpose of proving its truth, it would be hearsay; whereas, if it had any admissible purpose, its evidential value would be negligible.

22. In relation to Ground 3, Mr Lui pointed out that there was no basis to suggest that the appellant was either attending an “interview” or, if the exercise was equivalent to an “interview”, that he had a right not to be interviewed.

23. In respect of the five instances of allegedly unfair intervention by the judge under Ground 4, Mr Lui contended that:

(i)  The first intervention was justifiable on the part of the judge in response to an erroneous submission as to admissibility[28];
(ii)  The second intervention was necessary because defence counsel had conducted his cross-examination on the premise of a wrong proposition of law[29];
(iii)  The third intervention was made by the judge in an attempt to clarify the defence case being put to PW2 by defence counsel[30];
(iv)  The fourth intervention arose out of the judge’s concern that there might have been differences between the Chinese and English versions of PW2’s witness statements[31];
(v)  The fifth intervention was prompted by the judge’s attention to the appellant’s need to use the toilet and could hardly be criticised[32].

24. As for Ground 12, Mr Lui submitted that the judge had properly and repeatedly directed the jury that the appellant had a right of silence, while it was never in dispute that he had in fact elected to waive such right by responding to the caution[33].

25. The respondent submitted that there was nothing, either individually or cumulatively, which rendered the conviction unsafe or unsatisfactory. Accordingly, Ground 16 could not be established and the appeal should be dismissed.

Discussion

26. It seems to us that the complaint under Ground 2 raises two issues. The first relates to the relevance of the call records, and the purpose for which they were sought to be adduced. The second relates to their admissibility. With respect to the judge, who said, in the opening sentence of the passage recited at [10] supra, that she regarded the issue as one of admissibility rather than relevance, we think it was the other way round and that the whole submission ultimately founders on the supposed relevance of what Mr Wong was seeking to do.

27. Mr Wong’s argument is based wholly on an assertion that “Fat Fish”, whom he mentioned to PW1 when arrested, and “Fish Boss”, which appeared in the appellant’s call records together with a telephone number (according to the admitted facts), were one and the same person. From this assertion, the submission is that not only were the police officers informed at the outset that Fat Fish was the drug supplier, but that the call records between Fish Boss and the appellant were at least discoverable in the appellant’s mobile telephone, had they looked for them. Since the two names are asserted to refer to the same person, but the matter was never properly investigated, Mr Wong argued that he should have been permitted to explore the issue with PW1 by reference to the appellant’s call records, as a result of which he might have been able to elicit more from, or even discredit, PW1 and hence strengthen his case theory of a set-up.

28. However, Mr Wong accepted in oral argument that he suffered from a fundamental difficulty in establishing an evidential link between Fat Fish and Fish Boss, particularly since the appellant had elected not to give evidence. Nor was any other evidence adduced, or anticipated to be adduced, as to any link between the two names or the content of the remainder of the appellant’s call records. Since neither the fact nor the logic of his assertion could be established, we do not see how relevance could have been established; nor do we think that the judge’s direction at [18] supra can be impugned.

29. But even if we were to look at the complaint of non-investigation by the police as a discrete issue, it was an admitted fact that the name Fish Boss (as opposed to Fat Fish) appeared in the call records of the appellant’s mobile telephone, together with a telephone number. As to why there was no investigation by the police, Mr Wong was nevertheless still able to cross-examine PW1 about this issue. And he did so. However, PW1 explained that the appellant had not said anything about having telephone calls with Fish Boss, nor had the appellant mentioned Fish Boss to him at all. The officer did accept, however, that he thought it would be worth investigating had he in fact been given this information by the appellant, which he was not[34]. Accordingly, there never was any evidence from anyone to link the name of Fat Fish with Fish Boss, save for the common character of ‘Yue’ in each name. There was thus no relevance to Mr Wong’s cross-examination of PW1 on this point, which was at best, without wishing to be irreverent, a fishing expedition.

30. As to the second issue, it simply did not arise unless there was a foundation of relevance. Moreover, since Mr Wong had explained to the judge that he did not intend by this exercise to show that Fat Fish was Fish Boss, it seems to us to have been an irrelevant and rather futile exercise. There is no merit in Ground 2.

31. In relation to Ground 3, even if we assume that the signing of post-recorded entries in PW1’s notebook was akin to a formal “interview”, on which issue Mr Wong conceded before us he had no authority to support such a proposition, we do not accept that there was any duty on the officer to tell the appellant that he had a right not to be interviewed. The appellant had been fully advised of his right of silence when he was cautioned upon arrest at the scene[35]. PW1 immediately recorded the fact of the arrest and the caution, as well as the appellant’s response to the caution, in his notebook at the scene, which was there and then confirmed by the appellant’s signature[36]. The appellant was then cautioned again (twice it would seem) at his home when certain items were seized from the premises.

32. As for the proposition that a police officer has a specific duty to tell a suspect that he has a right not to be interviewed by an investigating authority, there is no such duty or right at common law, under the Hong Kong Bill of Rights Ordinance, Cap 383, in the Judges Rules of 1912 or in the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security, all of which are applicable in Hong Kong. There is, of course, a privilege against self-incrimination, which the caution is designed to protect.

33. In contending for such a right not to be interviewed, Mr Wong relied on a single authority of this Court, namely HKSAR v Wan Kwok Hung[37]. However, this authority needs to be carefully examined and understood in context. The principal judgment of the Court was given by Yeung JA (as he then was), who did not touch upon the question of any such supposed right not to be interviewed. The actual ground of appeal in that case concerned the propriety of a de-briefing session conducted by the police, for which no record was made, prior to a formal written interview taking place. Wright J, who agreed with the disposal of the appeal but sought to address an issue raised by the trial judge concerning the use of written records of interview by law enforcement officers where video-recording equipment was otherwise available, took issue with the practice of offering a suspect a choice as to how he was to be interviewed. Accordingly, he said[38]:

“A suspect has an absolute right to decline to be interviewed. He also has a right to agree to be interviewed subject to any conditions which he may stipulate, for example that the interview commence only after the arrival of his legal representative: he would also be entitled, at the time of giving his consent, to impose a condition that the interview be recorded in a particular manner.
Conversely, once a suspect has given unconditional consent to being interviewed, as happens in the overwhelming majority of cases, it is then wholly unnecessary for a separate and specific consent to be obtained from him as to the mode of recording that interview. The practice of routinely asking a suspect whether he consents to the interview being video recorded is to be firmly discouraged: recording of interviews other than by audio-visual means should occur only in exceptional circumstances.” (Emphasis supplied)

34. With respect, we have some concerns about the way Wright J has expressed a matter that was not germane to the appeal as explained by Yeung JA, but which arose out of something the trial judge had expressed “in trenchant terms”, according to Wright J, and with which he seems to have agreed, concerning police practices. If Wright J had said that a suspect had an absolute right to decline to answer questions when interviewed, we would not have disagreed. However, he went on in his judgment to talk about a suspect “giving his consent”, or giving “unconditional consent to being interviewed”, suggesting that he considered there was a general right of a suspect to refuse to be interviewed. With respect, we find no basis for such a right in law or practice. However, we do recall, in the early days of the introduction of video-recorded interviews in Hong Kong, and for some time after their inception, that there was a practice by the police to ask suspects whether they agreed to be video-recorded. That was the practice which the trial judge was criticising in 2008, and with which criticism Wright J was agreeing. Today, of course, the practice of video-recorded interviews has become the norm, and written records of interview, the exception.

35. Wright J’s comments about consent to the mode or method of interview were strictly obiter dicta (as correctly characterised in the Hong Kong Cases report) and did not arise out of any of the grounds of appeal. However, Tang VP (as Tang NPJ then was), in a very short judgment, took issue with Wright J’s view that a suspect’s consent to the mode or method of his interview was not required. But in so saying, he also held[39]:

“I also agree with Wright J that a suspect has an absolute right to decline to be interviewed. I believe it is in the interests of justice that whenever possible interviews should be video recorded (except for trivial offences). But a suspect must be told if it is proposed that the interview should be recorded. I do not share Wright J’s view that a consent to be interviewed could be taken as ‘unconditional’ such that a suspect’s consent to the interview being recorded by video is not required. It is important that a suspect’s rights be not eroded.” (Emphasis supplied)

36. One can immediately see that the point of dissention between Tang VP and Wright J concerned a suspect’s consent to the mode or method, as distinct from the fact, of interview, which issue arose out of the trial judge’s “trenchant” comments about police procedures. Yet, this issue does not appear to have had anything to do with the ratio of the judgment of Yeung JA. But it is on these two statements or assertions that a suspect has an absolute right to decline to be interviewed at all, on which Mr Wong has relied.

37. We do not think that these two obiter statements from Tang VP and Wright J are an adequate or, with respect, a correct foundation for the suggested right of a suspect to decline to be interviewed by a law enforcement authority. We should point out that in the recent decision of this Court in HKSAR v Tam Ho Nam (No 2)[40], we said:

“96. We have some difficulty in understanding what the ‘oppression’ to which the applicant referred was. Not wanting to be interviewed does not prevent law enforcement officers asking questions. It is not ‘oppression’ for police officers to conduct interviews of suspects in homicide cases who would rather not be interviewed. Nobody made the applicant answer as he did, or speak randomly: indeed, it was he who said he was willing to answer questions. …
97. It is well to remember that voluntariness does not depend on the convenience and preference of an accused: oppression does not arise because an accused finds it inconvenient or would prefer not to be interviewed.”

We note that the Appeal Committee of the Court of Final Appeal subsequently dismissed an application for leave by the applicant in the above case to appeal[41]. Ground 3 is not made out.

38. We can be brief in respect of Ground 4. We do not accept that the judge’s so-called interventions were either inappropriate or excessive, or came anywhere near depriving the appellant of a fair trial, and we agree with the respondent’s interpretation of the circumstances in which they occurred. We find no merit in this Ground.

39. As for Ground 12, it should be remembered that there was no dispute at trial that PW1 did ask the applicant what was in the tube of crisps, as a result of which the applicant did answer, “It was Fat Yue (or Fat Fish) who owed me $2,000 and asked me to take this tube of stuff”[42]. The difference between the parties appears to have been when and in what precise circumstances this question and answer took place; whether before or after the caution. Whatever the position, the appellant did not avail himself of his right of silence throughout, as the signed post-recorded conversations in PW1’s notebook made clear. Some questions, at the scene, at his home and in an interview room at Kwai Chung police station, he answered: some, during a subsequent video-recorded interview, he did not. Given that context, we do not see the judge’s impugned remark as infringing the appellant’s right of silence. The judge correctly directed the jury[43]:

“Any person who is suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. You must not hold his refusal to answer questions against him. The exercise of the right of silence cannot amount to an admission of any kind, nor can it be taken to reflect a guilty conscience.”

40. Elsewhere in her summing-up, she said[44]:

“…it is open to a defendant to choose to say nothing, to remain silent. You cannot criticise him for that. You must not do so in our system of law.”

A little later, she said of his choice[45]:

“not to answer the questions in interview and, again, absolutely no criticism of him. That is his absolute right. It is your right if anybody stops you. It is his right not to answer”.

Indeed, even in the passage impugned under this ground of appeal, the judge reminded the jury “that he does have a right -- he has a total right to say nothing but circumstantially this is what occurred”[46].

41. Looking, therefore, at the summing-up as a whole, as we must do, we do not think there was any danger of the jury treating those occasions when the appellant chose to remain silent as anything more than simply invoking his undoubted right to do so. There is nothing in this ground.

42. Accordingly, we found no merit in any of the substantive grounds of appeal argued before us and, therefore, rejected Ground 16 too. It was for these reasons that the appeal against conviction was accordingly dismissed.

(Andrew Macrae)	(Kevin Zervos)	(Maggie Poon)
Acting Chief Judge of the High Court	Justice of Appeal	Justice of Appeal

Mr Pierre Lui SPP, of the Department of Justice, for the Respondent

Mr Philip Wong, instructed by Gallant, assigned by the Director of Legal Aid, for the Appellant

[1] The grounds were not properly numbered in counsel’s original Perfected Grounds of Appeal, dated 8 January 2021, and were accordingly re-numbered in sequential order by Zervos JA, sitting as a Single Judge. Leave was granted by the Single Judge on Grounds 2, 3, 4, 12 and 16 of the re-numbered grounds, although Ground 2 appeared to involve an issue of pure law, on which leave to appeal would not have been required: HKSAR v Au Kwai Sun[2021] HKCA 1631, at [36]. However, as the argument developed before us, Ground 2 became more an issue of fact than law.

[2] As confirmed by defence counsel at the Case Management Hearing held on 21 October 2019, the admission was made voluntarily: Appeal Bundle (“AB”), p 136L-N; p 143J-K.

[3] AB, p 175G-I; Exh P21: AB, p 88.

[4] AB, p 194G-Q; Exh P21: AB, p 89.

[5] AB, pp 36S-37B.

[6] Admitted Facts No 3, at [1]: AB, p 20.

[7] Admitted Facts No 2, at [4]; AB, p 19.

[8] AB, p 231F-G; p 232N-O.

[9] AB, p 230N-P.

[10] AB, p 232L-M.

[11] Defence closing speech: AB, p 350R-S.

[12] Defence closing speech: AB, p 345J-K.

[13] AB, p 240H-I.

[14] AB, pp 355-362R.

[15] AB, p 357A-C, P-Q. The evidence which Mr Wong intended to adduce was a screenshot of the appellant’s mobile telephone depicting: one outgoing call on 2 January at 19:34 hours (duration 6 seconds), one incoming call on 2 January at 19:32 hours (duration 1 minutes 42 seconds), one missed call on 2 January at 19:31 hours, and one outgoing call on 2 January at 19:24 hours (duration 4 minutes and 12 seconds).

[16] AB, p 389 (penultimate paragraph).

[17] AB, pp 387-390.

[18] AB, p 240J-L.

[19] AB, pp 256J-257R.

[20] AB, pp 362S-366G.

[21] AB, pp 301L-302N.

[22] AB, pp 303A-304Q.

[23] AB, pp 348L-349J.

[24] AB, pp 39R-40R.

[25] AB, p 48M-S.

[26] Appellant’s submissions, dated 9 December 2021, at [3].

[27] Au Kwai Sun, at [38].

[28] Respondent’s submission, dated 12 January 2022, at [25].

[29] Respondent’s submission, dated 12 January 2022, at [26].

[30] Respondent’s submission, dated 12 January 2022, at [23].

[31] Respondent’s submission, dated 12 January 2022, at [24].

[32] Respondent’s submission, dated 12 January 2022, at [27].

[33] Respondent’s submission, dated 12 January 2022, at [31].

[34] AB, p 246 P-U.

[35] AB, p 175C-E.

[36] AB, p 175G-I; p 88

[37] HKSAR v Wan Kwok Hung [2009] 6 HKC 299.

[38] Ibid., at [54]-[55].

[39] Ibid., at [2].

[40] HKSAR v Tam Ho Nam (No 2) [2021] 5 HKLRD 367.

[41] HKSAR v Tam Ho Nam (Unrep., FACC 6/2022, 5 May 2022).

[42] AB, pp 174F-175F; p 279L-O.

[43] AB, p 37A-D.

[44] AB, p 30I-J.

[45] AB, p 32A-C.

[46] AB, p 48O-P.

CACC 350/2019

[2021] HKCA 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 350 OF 2019

(ON APPEAL FROM HCCC NO 251 OF 2019)

_______________

	HKSAR	Respondent
	v
	AU KWAI SUN	Applicant

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 29 October 2021

Date of Judgment: 1 November 2021

________________

J U D G M E N T

________________

Introduction

1. On 27 November 2019 the applicant was convicted after trial before Campbell-Moffat J (the judge) and a jury by way of unanimous verdict, of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, (Count 1), and one count of possession of dangerous drugs contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, (Count 2).

2. The judge sentenced the applicant to a total of 12 years and 8 months’ imprisonment for both counts.

3. The applicant now applies for leave to appeal against his conviction.

4. The first count alleged that the applicant, on 2 January 2019 outside Shek Yi House, Shek Lei (II) Estate, Kwai Chung, New Territories, unlawfully trafficked in 187 grammes of a crystalline solid containing 165 grammes of methamphetamine hydrochloride (commonly known as Ice). The second count alleged that on the same day, at Room 3205, 32^nd Floor, Shek Yi House, Shek Lei (II) Estate, Kwai Chung, New Territories, the applicant had in his possession 0.07 gramme of a solid, containing methamphetamine and 0.03 gramme of a solid, containing methamphetamine and cocaine.

The pre-trial hearing

5. At a case management hearing on 21 October 2019, Mr Philip Wong, who represented the applicant at trial and in this application, discussed with the judge whether it was necessary to have a voir dire to determine the admissibility of a post recorded statement made by the applicant when he was arrested for Count 1. He said “It was Fat Yu who owed me 2,000, asked me to take this can of stuff”.^{^[1]} He appeared to accept this statement was made voluntarily.^{^[2]} He then explained that the defence case to Count 1 would be that the drugs were planted on the applicant. To which the judge responded, if that were the defence case, then that was a matter for the jury and not something to be resolved by way of a voir dire:^{^[3]}

“Court: So I’m going to write here there is no issue of voluntariness.
Mr Wong: I will only say that, looking at everything together, we cannot say that this is – there’s no dispute on voluntariness.
Court: No, there is no dispute.
Mr Wong: Well, of course it’s up to you – it is your ruling. If there is no voluntariness, then there is no voluntariness.
Court: But if you are saying, you know, ‘I am an innocent person and this was all planted on me’, but that’s not for me, that’s for the jury, I can’t – I certainly could not, I do not have the power to exclude it on that basis.
Mr Wong: Yes.”^{^[4]}

6. On 25 October 2019, an unsuccessful application was made by the defence to sever Count 2 from the indictment.^{^[5]} This application was made on the basis that the evidence from Count 2 would prejudice the trial in Count 1.

The prosecution case

7. On 2 January 2019, two plain clothed police officers, PC 9062 (PW1) and PC 15157 (PW2), were on routine patrol in the vicinity of Shek Lai Estate. At 7:54 pm they noticed the applicant, whom they thought was acting suspiciously.^{^[6]} They stopped and searched him. PW1 found inside a bag the applicant was carrying a tube of potato crisps inside of which were the drugs specified in Count 1.^{^[7]}

8. PW1 asked, “What is this stuff?”, to which the applicant did not answer. He was subsequently arrested for trafficking in a dangerous drug and cautioned. He was asked again what was the stuff inside the tube, to which the applicant replied, “It was Fei Yu who owed me $2,000 and asked me to take this tube of stuff”.^{^[8]}

9. PW1 made a post-record of what took place in his notebook, which read:

“At 7:50 on 2 January 2019, near a park off Shek Yi House, Shek Lei Estate, arrested male Au Kwai-sun for an offence of trafficking in dangerous drugs. Having been cautioned, Au Kwai-sun said to me in the Punti dialect, ‘It was Fei Yu who owed me $2,000. I was asked to take this tube of stuff ... I further asked Au Kwai-sun, ‘What is this tube of stuff?’ Au Kwai-sun said to me, ‘potato crisps.’ I further asked Au Kwai-sun, ‘What is the stuff inside the potato crisps?’ Au Kwai-sun said to me, ‘I don’t know what it is’”.^{^[9]}

10. PW1 and PW2, along with other officers, went back to the applicant’s flat to conduct a search. PW1 noticed the applicant had smoking apparatus in the flat, namely three Ice pots, where the traces of drugs in Count 2 were found. He arrested and cautioned the applicant, to which the applicant said, “The three Ice pots were used by me to smoke Ice”.^{^[10]} This was not disputed by the defence. Also found in the flat was an electronic scale,^{^[11]} a Watsons box containing a pair of scissors, a pair of tweezers and 26 transparent resealable plastic bags.^{^[12]}

11. In the admitted facts two fingerprint examination reports were produced. In the report concerning the drug related items it was stated that no mark of value was found.^{^[13]} The prosecution called PW3, a fingerprint expert, who explained how fingerprints were lifted as well as why no fingerprints may be found.^{^[14]} It was also an admitted fact that the estimated street value of the drugs at the time of the offence was $102,514, and the prosecution alleged the amount of drugs was too much for self-consumption and were for the purposes of trafficking. The prosecution also called PW4, a toxicology expert, who gave evidence about the likely consumption rates of the drugs in question.

12. PW1 testified that no relevant evidence was found on the applicant’s phone.^{^[15]}

The defence case

13. The applicant did not give evidence or call evidence on his behalf. The defence case was advanced solely through the cross-examination and submissions of his counsel. Mr Wong alleged this was a set up by the police in order to protect “Fei Yu” (who was also known as “Fat Fish”).^{^[16]} He suggested PW1 and PW2 were acting on information and the applicant had not, in fact, looked suspicious when he was intercepted.^{^[17]} The applicant did not have any contact with the tube of crisps containing the drugs and was in the process of picking it up just prior to being intercepted.^{^[18]} He contended that PW1 had found the tube on the grass beside where they intercepted the applicant. He suggested the police had not properly followed up with their investigation of the case, and the police did not want to expose Fei Yu.^{^[19]}

14. Mr Wong argued there was no evidence the applicant was the only one who resided in his flat. He stated that given the small quantity of drugs, there was no evidence of any intention by the applicant to control the drugs and therefore the prosecution could not prove he possessed the drugs.^{^[20]}

15. It was further suggested by Mr Wong in his closing speech that the applicant had said to PW1 when he was first arrested, “It was Fei Yu who called me and asked me to come down and told me the money was inside the tin”.^{^[21]}

The applicant’s call record

16. During his cross-examination of PW1, Mr Wong sought to put to him the call record purportedly from the applicant’s phone.^{^[22]} The judge queried whether or not this was appropriate as PW1 was not a computer technician and so could not say whether the phone was working at the relevant time.^{^[23]} The judge was concerned the requirements of section 22A of the Evidence Ordinance Cap 8 had not been met. Mr Wong argued section 22A was not engaged because he was not relying on the call record for the truthfulness of what was contained in there. He was only seeking to prove that there was such information on his phone.^{^[24]} The judge was of the preliminary view that PW1 had given evidence that he did not look at the call record and it was not open to the defence to put the call record to him.^{^[25]} There was further submission on this issue and the judge gave a lengthy ruling.[26]

The post-record

17. In his cross-examination of PW1, Mr Wong asked if, before having made the post-record, PW1 presented the applicant with a notice to persons in custody.^{^[27]} PW1 confirmed he did and that he had informed him he would later make a post-record of the caution statement, and that prior to the post-record he would give the applicant copies of the relevant documents.^{^[28]} Mr Wong then put to PW1 that he had never explained to the applicant he had a right to refuse to be interviewed.^{^[29]} In the absence of the jury, Mr Wong contended the applicant had an absolute right to decline to be interviewed. However, the judge was of the view that the applicant was not being interviewed at this stage.^{^[30]} The judge then gave her ruling:

“You may not suggest to this witness that the administrative procedure carried out around the POL153, the local body search, the fingerprinting or anything else is considered to be an interview in law for the purposes of either the common law or the rules and regulations on the detention and questioning of prisoners”.^{^[31]}

18. Not long after this ruling, the jury were sent out again and, in their absence, Mr Wong explained to the judge it was the defence case that PW1 had added to the post-record that the drugs were found on the applicant.^{^[32]} Mr Wong further said it was the applicant’s case that he had said Fei Yu told him money would be in the tube of crisps, but this was not recorded in the post-record.^{^[33]} Mr Wong said he had informed the court of this at the CMH, but nonetheless accepted this was a matter for the jury.^{^[34]}

The applicant’s submissions

19. Mr Wong has filed Perfected Grounds of Appeal Against Conviction dated 8 January 2021, in which he raises numerous grounds of appeal. They are not framed as required by Practice Direction 4.2, nor particularised under any headings. I will summarise the grounds of appeal in sequential order as follows:

(1) The judge erred in “refusing the challenge of the admissibility of the conversation between the applicant and PW1 at the time of his arrest”,^{^[35]} thus failing to hold a voir dire to determine its admissibility. The effect of this was to distort the nature of the applicant’s admissions to the police, and to undermine the defence case that the applicant had been set up.[36]
(2) The judge erred in refusing to allow defence counsel to adduce the whole of the call record in the applicant’s phone. This showed there were three Chinese characters denoting “Fish Boss” linked to a mobile number as well as relevant incoming and outgoing calls shortly before the applicant was intercepted.[37]
(3) The judge erred in refusing to allow defence counsel to cross-examine PW1 about his failure to remind the applicant that he had a right to decline to participate in the interview where he signed the two sets of notebook entries in PW1’s notebook.[38]
(4) There were excessive interruptions by the judge during the cross-examination of PW1 and PW2, as well as during the closing speech of defence counsel which amounted to the judge inviting the jury not to accept the applicant’s case at trial.[39]

20. Mr Wong next submits the judge’s summing-up was unbalanced in so far as there were the following “material non-directions”:

(5) The judge failed to direct the jury on the defence counsel’s challenge as to the reliability of the oral conversation between the applicant and the police at the scene of his arrest.[40]
(6) There was no direction on the suspicious behavior of PW1 and how this was inconsistent with PW2’s evidence on the same aspect.[41]
(7) The judge failed to direct the jury that, as both PW1 and PW2 had written down the name “Fat Fish” in their witness statements and notebooks, this was good evidence to infer “that both PW1 and PW2 had had prior knowledge before intercepting the applicant as to who “Fat Yu” was”.^{^[42]}
(8) The judge failed to direct that there was evidence that PW1 did not want to expose the identity of Fat Yu. This was because PW1 did not question the applicant about who Fat Yu was until 24 January 2019.[43]
(9) The judge failed to direct the jury that, PW1 having never looked into the applicant’s phone for relevant information, was “good evidence” PW1 was covering up for Fat Yu.[44]
(10) The judge failed to direct that there was no evidence the applicant was the only one occupying the room; nor was he the only one who had used the 3 bottles for smoking Ice; nor was there a direction as to the small quantity of drugs in Count 2.[45]

21. Mr Wong finally submits the summing-up was unbalanced as there were the following “material misdirections”:

(11) The judge wrongly directed that the applicant’s shaking when he was intercepted by PW1 might have been due to long term drug abuse.[46]
(12) The judge was wrong to have directed that the applicant had the right to silence before he was arrested and cautioned as the direction suggested to the jury that “the applicant could have said something”.^{^[47]}
(13) The judge failed to direct the jury that PW2 might not have been able to see the suspicious behavior of the applicant as testified to by PW1.[48]
(14) The judge was wrong to have directed the jury that the absence of the applicant’s fingerprints on any of the exhibits was neutral.[49]
(15) The judge was wrong to have directed the jury that counsel had no evidence to suggest that “Fat Fish” was the supplier of the “dangerous drugs”. This was because it was PW1’s evidence that the applicant had told him about Fat Yu- something which both PW1 and PW2 had written down in their statements.[50]

22. Mr Wong concludes these grounds of appeal with the following general complaint.

(16) The conviction is unsafe and unsatisfactory.[51]

The respondent’s submissions

23. Mr Pierre Lui, for the respondent, submits the judge did not fail to hold a voir dire as the voluntariness of the notebook entry was never in issue, and when Mr Wong was asked by the judge if there would be any challenge to the oral admissions at the scene, he replied “that would be for the general issue”.^{^[52]}

24. Mr Lui submits the judge was plainly correct to have refused to admit into evidence the applicant’s call record as the conditions under section 22A of the Evidence Ordinance were not met.

25. Mr Lui notes during the cross-examination of PW1, it was suggested that before the post-recorded notebook entry was shown to the applicant, PW1 did not tell the applicant he had the right to refuse to be interviewed. This prompted the judge to intervene and ask Mr Wong what was the legal basis of such a proposition, as the applicant was not being interviewed at the material time. Mr Lui submits this is an example of irrelevant authority being used to support an erroneous proposition of law. Furthermore, Mr Lui notes the applicant exercised his right to remain silent in his subsequent video recorded interview.

26. Mr Lui submits the judge’s interventions during the cross-examination of PW1 were justified.

27. As for the complaint that the summing-up was unbalanced, Mr Lui argues the judge was entirely correct to have directed that, as the applicant had not given evidence, “there is no evidence from the defendant to undermine or to contradict or to explain the evidence put before you by the prosecution”.^{^[53]} Mr Lui submits the judge did put the defence case to the jury. She summarized what was included in the notebook entry.^{^[54]} She explained that the applicant had an absolute right to silence when being interviewed.^{^[55]} She summarized the defence theory that the police had deliberately chosen not to investigate the case against Fei Yu.^{^[56]} She mentioned the issue in this case was knowledge.^{^[57]} She also mentioned the conspiracy alleged by the defence,^{^[58]} as well as the defence on Count 2, that someone else might have used the Ice pots.^{^[59]}

28. As for the suggestion that Fei Yu had supplied the drugs and was somehow involved in the applicant’s arrest, Mr Lui submits the judge was correct to have directed, “there is absolutely no evidence of that and there is no suggestion put to either officer that Fei Yu had been involved in setting up the defendant”.^{^[60]}

29. Mr Lui also notes that at the end of the summing-up, Mr Wong was asked by the judge whether there was anything counsel wanted her to correct, alter or amend, to which he replied there was nothing.^{^[61]}

30. Mr Lui submits the judge’s directions on fingerprints were correct and in accordance with recent case law.^{^[62]} The judge’s comment to the jury about the applicant shaking upon arrest was a matter which the judge directed the jury they could take into consideration,^{^[63]} and there was evidence given at trial that long term users of Ice had a tendency to shake.

Discussion

31. As to Ground 1, there is no basis for the complaint as the applicant did not challenge the voluntariness of the post-record. In fact, Mr Wong at the leave hearing accepted the statement of the applicant had been made voluntarily but complained that additional comments were made by the applicant which were not written down. This was an issue that was ventilated at trial and denied by the police officers when it was put to them.[64]

32. As to Ground 2, the judge gave a ruling on the defence application to adduce the call record from the applicant’s mobile phone from PW1, the police officer who arrested the applicant and seized his mobile phone from him. There are aspects of the judge’s comments or ruling, such as what she said about the hearsay nature of the call record and compliance with the conditions under section 22A of the Evidence Ordinance in order to adduce the call record into evidence, that may very well provide a reasonably arguable ground. However, the main complaint concerns the judge’s refusal to allow Mr Wong to produce the call record through PW1, and it does not seem that he had any or sufficient evidential foundation to do so through this witness.[65]

33. Mr Wong argued before the judge that the call record did not offend the hearsay rule as he was not relying on the truth of its contents and he did not have to comply with section 22A, citing HKSAR v LuiKin Hong [2000] 1 HKLRD 92.

34. Mr Wong wanted to produce a call record from the applicant’s mobile phone. He mentioned this to the judge at the Case Management Conference on 21 October 2020. That was about one month before the trial. He was put on notice that if he wished to do so he had to comply with section 22A. The call record showed three Chinese characters, which when translated referred to “Fish Boss”, together with a phone number, with which the applicant’s mobile phone had some incoming and outgoing, as well as unanswered calls shortly before the applicant was arrested. However, Mr Wong sought to produce the call record at trial during cross-examination of PW1, who had not examined the call record, and the judge ruled he could not produce it through this witness. It seems that as a result of what had transpired, there were submissions from the parties to the judge on this issue, who then gave her ruling. After which, Mr Wong was able to obtain an admitted fact from the prosecution which read, “In the “call record” in the Defendant’s mobile phone, Exhibit P17, Chinese characters and a telephone number were located.”

35. It was open to Mr Wong to produce the call record as part of the defence case, but he did not do so. Mr Wong cross-examined PW1 in an attempt to have him connect the name Fish Boss on the applicant’s mobile phone with the name of the person the applicant mentioned at the time of his arrest, Fei Yu (Fat Fish), but he was unable to do so. In an exchange with the judge, Mr Wong confirmed that even if the screenshot of the call record was adduce into evidence he would not be calling evidence to prove that Fish Boss was Fei Yu. So for this reason it had very little forensic benefit to the defence case.

36. To the extent that this ground advances a point of law in respect of the application of section 22A, leave is not required.

37. As for Ground 3, the judge was correct in not allowing Mr Wong to cross-examine PW1 about his failure to remind the applicant he had a right to decline to participate in the interview when he signed the post-record. In his notebook, PW1 set out the events of the arrest and caution at the park, at 7:50 pm on 2 January 2019 and at his home at 9:05 pm on the same day. It was further noted that the post-record was made at 12:10 am on 3 January 2019, in which PW1 repeated his earlier entries and at the conclusion of the post-record at 1:15 am he read the post-record to the applicant and let the applicant read it himself and told him he could make any alteration, correction or addition to the statement he wished. At 1:30 am the applicant told him that he had nothing to alter correct or add, which he confirmed in a declaration adding the statement was true and he made it of his own free will.

38. There was a lengthy discussion about this point between the judge and Mr Wong in the absence of the jury, in which the judge questioned the basis of his line of cross-examination with PW1. The issue arises as to whether the judge was wrong to limit or restrict this line of cross-examination. However, I consider this is more of an issue relating to the complaint about the judge’s interruptions during the cross-examination of PW1 and PW2 as articulated under Ground 4. To this extent, I am satisfied it is reasonably arguable.

39. As for Ground 4, it is reasonably arguable that there were occasions when the judge interrupted or prevented the cross-examination of PW1 and PW2 and made comments that may have adversely reflected on the applicant’s case. Mr Wong provided the following example. It was the defence case that the applicant had been set up by Fei Yu and the police targeted the applicant. It was this line of questioning Mr Wong sought to pursue when cross-examining PW1. He complains he was prevented from doing so by the judge as shown in the following exchange:

“Q. What was the purpose of the patrol? I mean simply walk together or what?
A. That is to conduct an anti-dangerous drugs patrol.
Q. Who told you so?
A. Because generally, when we go out to have a walk, that is, to patrol, we would go to conduct anti-dangerous drug patrol.
Q. Nobody told you so.
COURT: They do for a living.
MR WONG: No, he -- I’m interested to find out anybody told him what was …
COURT: Nobody has to tell me to come in here and being a judge, Mr Wong.
MR WONG: No, he simply say that his see so understanding is to have what means to conduct anti-drug …
COURT: Yes, because that’s what they do for a living.
MR WONG: Well, I have to ask. I can’t assume.
COURT: Well, that’s what they just -- he’s just said, ‘That’s what we do’, and you’re asking him again, ‘Nobody needed to tell you’, but that’s what he does, he conducts antidrug patrols.
MR WONG: I have to ask. I don’t accept what he say, so I have to ask. He has said something which is -- may or may not be true. At the end of the day …
COURT: Well, if you’re going to put to him he wasn’t conducting an antidrug patrol …
MR WONG: No, no.
COURT: But I have a feeling that your case is that he was conducting an antidrug patrol.
MR WONG: No, my case is -- maybe I put to him later on.
COURT: Yes.
MR WONG: I don’t want to disclose at this stage.
COURT: All right, anyway.
Q. So …
COURT: He wasn’t -- he didn’t need to be told.”[66]

40. Mr Wong submits that this exchange with the judge and others illustrate the extent to which she frequently interrupted his cross-examination and regrettably descended into the arena by undermining the defence case. He argues that the judge’s interventions prejudiced the fair trial of the applicant.

41. In advancing this argument on appeal, the applicant is directed to set out the impugned interruption and to particularise how it prejudiced his fair trial.

42. As for Grounds 5 to 10, they each complain about how the judge should have directed the jury in respect of factual issues before them. What is being complained about in these grounds is the judge’s failure to comment in a particular way about the nature or quality of factual matters that were for the jury to resolve. I do not consider these grounds to be reasonably arguable.

43. As for Ground 11, this was a factual issue before the jury concerning how long-term users of Ice tend to shake and this was being explained by the judge to counter PW1’s evidence that he thought the applicant was nervous.[67] There is no cause for complaint about the judge’s comments. This ground is not reasonably arguable.

44. As for Ground 12, Mr Wong complains the judge completely undermined the applicant’s right to silence by her comments that he could have said certain things but did not do so. He argues the following remarks were both inappropriate and unfair:

“When he was first asked what the stuff was, before he was arrested and cautioned, he made no response. The response was not, ‘Oh, I thought it was money’ or ‘Oh, I thought it was crisps.’ Always bearing in mind that he does have a right -- he has a total right to say nothing but circumstantially this is what occurred. His answer upon arrest and caution could be seen as an admission against interest. In other words, a form of confession depending upon how you read it when he said, ‘It was Fei Yu who owed me 2,000 and asked me to take this tube of stuff.’ That is a question of interpretation for you.”[68]

45. I am satisfied the judge’s remarks provide a reasonably arguable ground of appeal.

46. As for Ground 13, this was a factual issue before the jury and the judge was entitled to comment on the evidence. It concerned the distance that PW2 was in respect of the applicant at the time of his arrest and what he could observe.[69] This ground is not reasonably arguable.

47. As for Ground 14, there was expert evidence before the jury in respect of fingerprint evidence and therefore there was a basis for the judge to direct that the fingerprint evidence was neutral.[70] This ground is not reasonably arguable.

48. As for Ground 15, it concerns the judge’s comments to the jury when correcting what Mr Wong said in his closing speech. She noted Mr Wong suggested to them that Fei Yu, as opposed to Fish Boss, was the supplier of the drugs and that he was somehow involved in the arrest of the applicant. She told them there was no evidence of this fact and there was no suggestion put to either PW1 or PW2 that Fei Yu had been involved in setting up the applicant.[71] Mr Wong complains that it was not correct for the judge to say there was no evidence Fei Yu was the supplier of the drugs. He points to the applicant’s statement made at the time of his arrest that Fei Yu asked him to take “the tube of staff”, and that PW1 and PW2 had written down the nickname “Fat Fish” in their witness statement and notebook when the applicant had not explained that Fei Yu was Fat Fish. I am satisfied on the basis of the applicant’s statement at the time of the arrest this ground is reasonably arguable.

49. As for Ground 16, this is a general complaint and dependent upon the success of any of the previous grounds.

Conclusion

50. It follows from what I have said, Grounds 1, 5 to 11, and 13 to 15 are not reasonably arguable, while Grounds 2, 3, 4, 12 and 16 are reasonably arguable, and accordingly I grant leave to the applicant to appeal his conviction on those grounds.

51. As for the grounds on which leave was refused, the applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

	(Kevin Zervos)
	Justice of Appeal

Mr Pierre Lui, SPP, of the Department of Justice, for the respondent

Mr Philip Wong, instructed by Gallant, assigned by the Director of Legal Aid, for the applicant

[1] AB, 130M-O.

[2] AB, 137J-K.

[3] AB, 138Q-T.

[4] AB, 138N-V.

[5] AB, 163-165.

[6] AB, 336P-R.

[7] AB, 336D-K.

[8] AB, 25N-P.

[9] AB, 27I-N.

[10] AB, 31L-N.

[11] AB, 190J

[12] AB, 190Q-T.

[13] See Admitted Facts, at [3], AB, 14.

[14] AB, 39C-P.

[15] AB, 240B-D.

[16] AB, 350R-U.

[17] AB, 342L-M.

[18] AB, 343J-L.

[19] AB, 350R-T.

[20] AB, 353A-I.

[21] AB, 25T.

[22] AB, 240H-I.

[23] AB, 355J-N.

[24] AB, 357A-C.

[25] AB, 361Q-S.

[26] AB, 387I-394H.

[27] AB, 253E-H.

[28] AB, 253N-U, 256 G-I

[29] AB, 256J-K.

[30] AB, 365D-G

[31] AB, 365R-366B.

[32] AB, 370L-N.

[33] AB, 376A-D.

[34] AB, 377S-T.

[35] Applicant’s Submissions, 3, at [(a)].

[36] Applicant’s Written Submission, at [6(a)].

[37] Ibid., at [6(b)].

[38] Ibid., at [6(c)].

[39] Ibid., at [6(d)].

[40] Ibid., at [7(a)].

[41] Ibid., at [7(b)].

[42] Applicant’s Submissions, 5, at [7(c)(i)].

[43] Ibid., at [7(c)(ii)].

[44] Ibid., at [7(c)(iii)].

[45] Ibid., at [7(d)].

[46] Ibid., at [8(a)].

[47] Applicant’s Submissions, 10, at [8(b)].

[48] Ibid., at [8(c)].

[49] Ibid., at [8(d)].

[50] Ibid., at [8(e)].

[51] Ibid., at [9].

[52] AB, 143I.

[53] AB, 37I.

[54] AB, 25T

[55] AB, 32B

[56] AB, 39Q-42K

[57] AB, 47Q

[58] AB, 49M.

[59] AB, 51G-51K.

[60] AB, 42J.

[61] AB, 53R.

[62] HKSAR v Zhou Limei[2018] HKCA 592; HKSAR v Oloyede Wasiu[2018] HKCA 580; HKSAR v Jassey Francis & Another[2018] HKCA 369.

[63] AB, 24A

[64] AB, 25K-26C.

[65] AB,355K-362R and 387I-394H.

[66] AB, 301O-302N.

[67] AB, 23R-24C.

[68] AB, 48M-R.

[69] AB, 23G-O.

[70] AB, 39I-P.

[71] AB, 42F-43R.

HKSAR v. AU KWAI SUN

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