Hksar v Chau Hon Kwong

CACC 86/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2010

(ON APPEAL FROM HCCC NO. HCCC 254 of 2009)

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REASONS FOR JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

1. The applicant sought leave to appeal his unanimous conviction by a jury before Line J of a single charge of trafficking in 372.50 grammes of heroin hydrochloride contrary to s. 4 of the Dangerous Drugs Ordinance, Cap 134, as well as the subsequent sentence of 17 years imprisonment.

2. At the conclusion of the hearing we dismissed the application for leave to appeal conviction. We granted leave to appeal sentence, treated the hearing as the appeal proper, allowed the appeal and substituted a sentence of 16 years. We indicated we would give our reasons later. This we now do.

APPEAL AGAINST CONVICTION

The grounds of appeal

3. It was necessary to identify just what it was in the conduct of the trial that gave rise to this application, for the primary ground of appeal did not accurately reflect the events which occurred. The two specific grounds of appeal, in addition to the usual catchall of the conviction being unsafe and unsatisfactory, were:

That the learned judge erred in deciding that the applicant, when he gave evidence in the course of this trial, had put his character in issue (by inferring that he was of good character when he was not), and this error was compounded when the judge then prevailed upon senior counsel for the applicant to make a further admission under s. 65C of the Criminal Procedure Ordinance, in such terms as could have left the jury with the impression that the applicant had a previous conviction or previous convictions, thus depriving the applicant of a fair trial.

That the learned trial judge erred when he directed the jury in the following terms: "[I]f you think the defendant might be telling the truth, that means you must necessarily have a doubt about the truth of the prosecution evidence in the case: again, in those circumstances it is your duty to return a verdict of not guilty" because this direction suggested that the defence, in the trial, had challenged the prosecution case, when in fact, the prosecution evidence was not challenged, and for the most part, was the subject of admissions under s. 65C of the Criminal Procedure Ordinance.

Events at trial

4. The applicant elected to testify on his own behalf. On the morning of 24 February 2010 when he was being examined in chief by leading counsel, Mr. Clive Grossman SC, the following exchanges occurred:

Q. Now, what I wanted to ask you a little about is this. What is your occupation? At the time you were arrested, what were you doing? What work did you do?

A. I'm a businessman, and at that time I worked in a real estate company.

Q. Doing what?

A. The major work was to develop real estate and to collect rentals. But I also got another proper job by the name... and the company was under my name. It was also a real property development company. And each year, I draw $500,000 as my wages. And I also got other sources of income, like a bonus and dividend of certain shares. And I got two cheques in the year of 2009. This is my entitled dividend of the shares....

...

Q. Well, in short, are you, the point you're making, that you were financially secure and you didn't need to involve yourself with drugs?

A. Right

Court. Just to make my life easy, just tell me a round figure for your annual income.

A. As I said before, my annual income was 500,000.

Q. That was by way of wages. I think what his Lordship was asking you, bearing in mind all the other incomes that you had from shares, etc, approximately, say in the year before you were arrested, what is your income?

...

A. $8 million

...

Q. Now, I want to ask you a bit about your lifestyle. During the day, may I take it you were at work with your companies?

A. Yes.

5. That afternoon the prosecutor and Mr. Grossman made their closing speeches to the jury. The judge indicated that he would address the jury the following day. After the jury had departed Mr. Grossman raised with the judge an aspect of the judge's forthcoming summing up in respect of which the judge had provided counsel with a draft. When that issue had been dealt with the judge asked the prosecutor, Mr. Whitehouse of counsel, whether he had a copy of the applicant's antecedent statement. That was given to the judge who then queried the whereabouts of the record of the applicant’s criminal convictions. That was then made available to the judge. The following exchange between the judge and counsel occurred:

Court. You've seen these antecedents, have you, Mr. Whitehouse, and previous convictions?

Mr. Whitehouse. The criminal record or the antecedents, my Lord?

Court. The criminal record.

Mr. Whitehouse. Yes I have, my Lord. Yes.

Court. You let him walk out of that witness box in front of this jury giving the impression that he was a businessman working in legitimate business, didn't you?

Mr. Whitehouse. My Lord, we have discussed that, and I am aware of it. I didn't think it would be right - I didn't think he had gone far enough, my Lord. I certainly didn't think it would be in the interests of a fair trial to cross-examine him on his character.

Court. I'm not suggesting you put that in, but the impression that the jury carried away with them is significantly different, because he couldn't have been acting as a legitimate businessman until when...

Mr. Grossman. He came out, I think, in December - I might be wrong - I think December 2008 and then my instructions are that's exactly what he was doing.

Court. You didn't think to say "You've been a businessman for four months" or the like.

Mr. Whitehouse. Yes. I didn't think that was consistent with the caretaker’s evidence that he turned up at...

Court. What? The man had been in prison, hadn't he?

[Emphasis supplied]

6. The following morning, in the absence of the jury, the judge pursued the matter with Mr. Grossman during a fairly lengthy exchange, in which the following passages were relevant to this appeal:

Court. Mr. Grossman, yesterday your...