HKSAR V CHAU YUI MING

HKSAR v Chau Yui Ming
[2019] 1 HKC 179
A HKSAR v CHAU YUI MING

COURT OF APPEAL
CRIMINAL APPEAL NO 441 OF 2015, [2018] HKCA 569
MACRAE VP, MCWALTERS AND PANG JJA
8 DECEMBER 2016, 30 JANUARY, 5 SEPTEMBER 2018
B
Criminal Law – Trafficking in dangerous drugs – Methamphetamine –
Ketamine – Directions to jury – Whether appropriate to put to jury
alternative version of facts – Drugs found in flat – Whether defendant
trafficked all or only some of dangerous drugs found in flat
C
刑法 – 販運危險藥物 – 甲基苯丙胺(俗稱冰毒) – 氯胺酮(俗稱
K仔) – 向陪審團作出指引 – 向陪審團指出事實的另一個版本
是否恰當 – 在單位內搜獲毒品 – 被告是否販運所有在單位的
毒品或只是部份
D
The applicant was convicted after trial of one count of trafficking in dangerous
drugs. The prosecution case was that the applicant trafficked all the drugs seized
in the operation, including 22 grammes of ice found in a bag he was carrying
outside a flat when arrested and those inside the flat, 63 grammes of ‘ice’ and 2
E grammes of ketamine in a room for which the applicant had the key, although he
was not the tenant. The defence case was that he was never in possession of any
of the drugs and the full admissions allegedly made were either never said or were
made involuntarily. The possibility that the applicant might have been trafficking
in only part of the drugs was first canvassed after the evidence concluded. The
F prosecutor suggested to the jury in his closing address if they were satisfied in
respect of one of the two batches of drugs, they could be satisfied as regards to
both. Defence counsel, however, suggested that the jury had to find the applicant
was in possession and control of all the drugs before they could convict. In his
summing up, the deputy judge adopted the ‘all or nothing’ approach and enjoined
the jury not to convict unless they were sure of the applicant’s guilt in relation to
G all the drugs in the charge. The applicant applied for leave to appeal against
conviction, complaining that while the prosecution was justified to lay only one
charge at the start, after the evidence when the prosecutor became concerned there
could be different verdicts in respect of different batches of drugs, the charges
should have been split into the ‘ice’ in the bag carried by the applicant, the ‘ice’
H in the room and the small quantity of ketamine in the room; and also that the judge
should have left the jury with the scenario that the applicant might have been
trafficking in only part of the drugs.
Held, by a majority (McWalters JA dissenting) refusing leave to appeal

and dismissing the appeal:
I
Per Pang JA (Macrae VP agreeing)
(1) The prosecution was justified to adhere to the approach of maintaining only
one charge in the circumstances. There was nothing to oblige them to
‘responsibly’ change positions. There was no objection to including the ketamine
in one umbrella charge. Admittedly small in quantity, this drug was kept in the
180 Hong Kong Cases [2019] 1 HKC
same bag as the bulk of the ‘ice’, which was undoubtedly for trafficking, together A
with a large number of small empty plastic bags. Unless it was shown to be
intellectually impermissible to posit that this drug was also for trafficking, there
need not be any clear answer. If, in the event of a conviction, it was pleaded that
the ketamine was for self-consumption, it was no different from pleading that part
of the ‘ice’ was for self-use. It would not affect the charge but it might go to B
mitigate the sentence, as happened daily in our courts (para 97).
(2) The trial judge was not wrong to give the direction under complaint in the
light of the conflicting positions put forward by counsel in their closing speeches.
There was no prejudice to the defence of any latent duplicity. With the conflicting
positions advanced by counsel still awaiting resolution, the trial judge enjoined
the jury not to convict unless they were sure of the applicant’s guilt in relation to C
all the drugs in the charge, the defence got what it wanted from the court. There
could not be any complaint at this stage. Nor was the direction under complaint
encroaching on the constitutional role of the jury. The trial judge did not point to
the evidence and direct the return of a certain verdict. What he had done was
almost like explaining to the jury what constituted the offence. R v Brown (Kevin) D
(1984) 79 Crim App R 115 referred to (paras 99, 101-121).
(3) The assertion that this was an ‘all or nothing’ case was incorrect. To so
describe the case would be to confuse guilt with the degree of culpability, as in
the exact amount of drugs that one was trafficking. What defence counsel ought
to have done upon the prosecutor indicating his intention to advance a fallback
position, was to address the court on the need then to accept partial verdicts, in E
which case the applicant’s interest would be protected, properly. R v Peevey
(1973) 57 Cr App Rep 554 and Lo Kwong Hing v R (CACC 593/1979, Roberts
CJ, Li J and Commissioner de Basto, 17 January 1980, unreported) applied (para
100).
Per Macrae VP F
(4) It must be commonplace for juries to take a particular view of the facts
which may be rather different from the view promoted by the prosecution, yet
convict as charged. The trial judge was not obliged to canvas all possible
permutations of fact in his summing up, including those not even put forward by
the defendant in evidence, where the verdict would be the same in any event. If
that were the position, it could lead to the appellate courts being besieged with G
complaints that the judge did not articulate every conceivable factual scenario,
even those not canvassed in evidence, notwithstanding that the verdict would have
been the same. Ho Hoi Shing v HKSAR [2008] 5 HKC 57, (2008) 11 HKCFAR
354 considered (para 19).
(5) There was no warrant for removing the ketamine into a separate count as the H
defence suggested, to cater for a possibility which was never canvassed in
evidence and was neither the prosecution nor the defence case (para 21).
(6) An appellate court must proceed on the premise that the jury would have
faithfully abided by and obeyed the judge’s instruction. For appellate courts to
yield too easily to the notion that they might not was to erode trust in the jury
I
system and ultimately to undermine the legal constitution. In the present case, the
jury were given a very simple direction, so as to avoid what the trial judge
conceived to be the danger of confusion, which direction they must have
followed. The Court of Appeal must proceed on the basis that the jury followed
the trial judge’s direction that if they thought the applicant was only in possession
[2019] 1 HKC 181
A of the 1st batch of drugs, but unsure if he was in possession of the 2nd batch of
drugs, then they must acquit altogether. There was no reason to think the jury
would not have faithfully followed that direction. Montgomery v HM Advocate
[2003] 1 AC 641, HKSAR v Kissel [2014] 1 HKLRD 460, R v Glennon (1992) 173
CLR 592 and Dupas v R (2010) 241 CLR 237 applied (paras 27-28, 36-37).
B Per McWalters JA (dissenting)
(7) The prosecutor was aware that, on the evidence, an alternative verdict was
available to the jury. The prosecutor should have applied to amend the indictment
by laying an alternative count of unlawfully trafficking in a dangerous drug,
particularising in that alternative count only the drugs that were in the sling bag
the applicant was carrying outside the flat. The relevant legal principles governing
C the duty of the judge in such a situation made clear that even though a case might
be fought on a particular basis, if the evidence threw up other possibilities on
which a reasonable jury might return an alternative verdict, then the judge was
obliged to direct the jury on their right to return these alternative verdicts. This
was so even if the alternative was inconsistent with the defence run by the
D defendant’s counsel. The threshold was a low one. In the present case, there was
a sufficient evidential basis for these principles to apply. That being so, the judge
had to direct the jury that they could return a verdict of guilty confined only to the
drugs in the sling bag. The simplest and most effective way of placing such an
alternative verdict before the jury was to amend the indictment by laying an
alternative count of unlawfully trafficking in a dangerous drug, particularising
E only the drugs in the sling bag. Ho Hoi Shing v HKSAR (above) applied (paras
54-56).
(8) The judge’s direction, though on its face favourable to the applicant, did not,
in reality, leave the jury with the alternative verdict presented by the evidence,
which would result in the applicant being convicted of trafficking but only in
F respect of the smaller quantity of drugs in the sling bag. The effect of the judge’s
direction, which he told the jury was wrong in law but which they nevertheless
had to apply, and which contradicted the prosecutor’s statement of the law, was
that they would have to acquit the applicant completely (paras 59, 63).
Cases referred to
G Chim Hon Man v HKSAR [1999] 1 HKC 428, (1999) 2 HKCFAR 145, (1999)
2 HKCFAR 145 (CFA)
Dupas v R [2010] HCA 20, (2010) 241 CLR 237, (2010) 203 A Crim R 186
(HC, Aust)
Gilbert v R [2000] HCA 15, (2000) 201 CLR 414, (2000) 74 ALJR 676 (HC,
H Aust)
HKSAR v Chan Hing Chi [1997] 4 HKC 75, [1998] 1 HKLRD 184 (CA)
HKSAR v Kissel [2014] 1 HKLRD 460, [2013] HKCU 2782 (CA)
HKSAR v Tam Yi Chun; sub nom HKSAR v Tam Yi Chun (譚伊真) (No 2)
(HKC) [2014] 4 HKC 256, [2014] 3 HKLRD 691 (CA)
HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, [2002] HKCU 108 (CA)
I
HKSAR v WWK [2011] 5 HKLRD 584, [2011] HKCU 685 (CA)
HKSAR v Yeung Ka Sing Carson (楊家誠) [2016] 5 HKC 166, (2016) 19
HKCFAR 279 (CFA)
HKSAR v Yu Wai Nang [2015] HKCU 200; (CACC 383/2013 Lunn VP, Poon
and D Pang JJ, 27 January 2015, unreported) (CA)
Ho Hoi Shing v HKSAR [2008] 5 HKC 57, (2008) 11 HKCFAR 354, [2008] 5 A
HKLRD 658 (CFA)
Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, [2005] 1 HKLRD 349, [2004]
HKCU 1476 (CFA)
Lo Kwong Hing v R (CACC 593/1979, Roberts CJ, Li J and Commissioner de
Basto, 17 January 1980, unreported) (CA) B
Montgomery v HM Advocate [2003] 1 AC 641, [2000] All ER (D) 2272, [2001]
2 WLR 779 (PC)
R v Brown (Kevin) (1984) 79 Crim App R 115 (CA, Eng)
R v Burke (1985) 82 Cr App R 156 (CA, Eng)
R v Corbett [1988] 1 SCR 670, 41 CCC (3d) 385 (SC, Canada)
R v Courtie [1984] AC 463, [1984] 1 All ER 740, [1984] 2 WLR 330 (HL) C
R v Glennon [1992] HCA 16, (1992) 173 CLR 592, (1992) 106 ALR 177 (HC,
Aust)
R v GNN (2000) 78 SASR 293 (SC, S Aust)
R v Lok Kin Pui [1987] 1 HKC 179 (CA)
R v Maxwell [1990] 1 All ER 801, [1990] 1 WLR 401, [1991] Crim LR 64 (HL) D
R v McLeod (1995) 1 Cr App R 591, [1994] 3 All ER 254, [1994] 1 WLR 1500
(CA, Eng)
R v Peevey (1973) 57 Cr App R 554 (CA, Eng)
R v Powell (1986) 82 Cr App R 165, [1986] 1 All ER 193, [1985] 1 WLR 1364
(CA, Eng)
Z v Director of Public Prosecutions [1994] 2 IR 476 (Ireland) E
Legislation referred to
Criminal Procedure Ordinance (Cap 221) ss 54(1)(f)(ii), 83(1)(c)
[Editorial note: For summing up to the jury in trials before the Court of First F
Instance, see Halsbury’s Laws of Hong Kong, Title 130, Criminal Procedure,
[130.785]. For cases on quantum of sentence for drug trafficking generally, see
Cross & Cheung, Sentencing in Hong Kong (8th Ed, LexisNexis), Appendix.]
Application for leave to appeal

This was an application for leave to appeal by Chau Yui Ming against G
conviction and sentence imposed after trial before Deputy Judge Lugar-Mawson
and a jury of a single count of trafficking in 85.7 grammes of mehtamphetamine
and 2.08 grammes of ketamine. The applicant was sentenced to 10 years’
imprisonment. The facts appear sufficiently in the judgment of Pang JA.
H
Gerard McCoy SC and Richard Donald (Cheung & Liu) for the applicant.
Anna Lai SC, Deputy Director of Public Prosecutions, and Joe Hui, Public
Prosecutor (Director of Public Prosecutions) for the respondent.
Macrae VP:
I
1. In view of the Court’s disagreement in respect of the resolution of
Grounds 3 and 4 of the applicant’s re-amended perfected grounds of
appeal, I shall state my own views.
2. I agree with Pang JA in respect of his reasons for rejecting Grounds
[2019] 1 HKC (Macrae VP) 183
A 1 and 2 and nothing more need be said about them. I also agree with his
reasons for refusing leave to appeal in respect of the appeal against
sentence.
3. In resolving Grounds 3 and 4, it is important to see the argument
against the evidence and the live issues at trial. The prosecution case was
B from beginning to end that the applicant was trafficking in all of the drugs
seized, both those in the sling bag the applicant was carrying outside the flat
(what Pang JA terms the 1st batch of drugs) and those in the bag on the table
inside the flat (the 2nd batch of drugs). In support of their case, the
prosecution relied on the applicant’s physical possession of the 1st batch of
C drugs, his possession of keys to Room A, inside which the 2nd batch of
drugs were found, and his admissions to possession of the first batch upon
arrest and both batches later in interview.
4. The defence case was that none of the drugs belonged to him and he
was never in possession of any of them; not even for his own consumption.
D Such admissions as he was alleged to have made were either never said or
were involuntarily made in response to various forms of oppression.
5. The applicant elected to give evidence and it is significant to note that
it was never his case that he was in possession of only the 1st batch of drugs
but not the 2nd batch of drugs. His case was that he never had possession
E of either. Neither defence counsel nor prosecuting counsel sought to
distinguish between his possession of the two batches of drugs during
examination in chief or cross-examination of the applicant. The approach of
the prosecution was that the applicant was in possession of all the drugs: the
defence account was that he was in possession of none of them.
F 6. The first time that the possibility of the jury finding the applicant in
possession of the 1st batch of drugs for the purposes of trafficking but not
the 2nd batch came after the defence case had closed but before the closing
addresses of counsel. It was raised just after the luncheon adjournment on
Friday, 11 December 2015.
G 7. The impetus for the discussion came from prosecuting counsel, who
was concerned that the jury might think that the applicant’s admission of
possession of the 2nd batch of drugs was to protect the woman, Wai Wai.
Accordingly, the jury might be satisfied that the applicant had the 1st batch
of drugs for trafficking, but not the 2nd batch. Prosecuting counsel’s answer
H to his own concern, however, was ‘the jury would only have to find that one
of the quantities was in his possession or control, and that that possession
or control was with his knowledge and was for the purposes of trafficking’.1
8. Defence counsel immediately made clear to both the prosecution and
the court that prosecuting counsel’s position was ‘directly contrary to what
I my submissions are going to be to the jury’.2 Both counsel then delivered
their respective speeches to the jury, with prosecuting counsel adhering to
1. AB, p 278K-L.
2. AB, p 278N-O.
his position and defence counsel adhering to his. A

9. Prosecuting counsel said this in his closing address:3
‘ And if, even at the end of the day, in the face of what we say is strong
evidence, strong, compelling evidence, you are satisfied only with regard to the
drugs in the sling bag, you would then return a proper verdict of guilty to the B
charge that he is facing.’
10. Defence counsel, however, addressed the jury as follows:4
‘ … as I said, it’s only one charge. Before you can convict the defendant of the
offence, you have to find that he was in possession and control of all those C
dangerous drugs for which he is being charged. If you find that he was in
possession and control of the two bags and the sling bag, I submit to you that
it’s insufficient to prove -- to find him guilty of all the dangerous drugs in the
flat. You have to be sure that all the dangerous drugs belonged to him, that’s
what he’s been charged with, all the dangerous drugs, not just the two bags --
D
not just the two bags of ‘Ice’ in his sling bag, all of them, that’s what he’s been
charged with. If you think the possibility exists that only those two bags in the
sling bag was his, then I submit to you, you must find him not guilty.
If you believe or it could or may be the case that you believe it is, or you find
it could or may be the case that the drugs on the table in the little black bag E
belonged to Wai Wai, then you must acquit the defendant. It’s all or nothing.
Just because he may have had two little bags in his bag doesn’t make him guilty
of the whole lot, because then you can’t be sure -- you are not sure, if you find
that it’s just the two and not the whole lot, there is a doubt, you must be sure,
come to the conclusion -- the determination that they all belonged to him, and
not, for example, just the two in his sling bag.’ F
11. Later, towards the end of his speech, he returned to the same theme:5
‘ Members of the jury, if, for any reason, you decide that the two packets of
‘Ice’ that the police claim they found in the defendant’s sling bag was his, and
only those two bags were his, then you must find him not guilty, before you can G
find him guilty of the charge, you must be satisfied beyond reasonable doubt
that all the dangerous drugs that the police alleged in the indictment was his,
before you can convict him. It’s all or nothing, not guilty.’
12. Finally, defence counsel posed this question for the jury in his final
H
remarks:6
‘ Can you be sure the defendant was in possession of all those drugs?’
13. The defence position was thus put emphatically and unequivocally.
Perhaps because of the strength with which defence counsel had put his I
3. AB, p 160H-I.
4. AB, p 177I-S.
5. AB, p 178O-R.
6. AB, p 179C-D.
[2019] 1 HKC (Macrae VP) 185
A position, the judge evidently considered the issue over the weekend and
raised the matter with counsel at the commencement of proceedings on the
following Tuesday, 15 December 2015, shortly before he was to begin his
summingup. He said as follows:7
B ‘I’ve given it -- I gave it some thought over on Friday evening. I’ve come to the
conclusion, having read the authorities, that although I don’t quite agree with
Mr Donald, I think the safest course of action given the state of the evidence
and the way the prosecution has chosen to bring this case, that this is pretty
much an all or nothing case.
C …. . .
It will be very dangerous, I think, to start putting alternative scenarios to the
jury when the case is being brought by the prosecution on the basis that all the
drugs belong to the defendant.’
D 14. To this statement of what the judge proposed to say in his

summingup, defence counsel said nothing whatsoever. I will return to that
matter shortly.
15. Accordingly, the judge summed up on the basis he had indicated, as
follows:8
E
‘ In his closing speech on Friday, Mr Donald said this is a case of all or nothing.
If you come to the decision that the defendant did not possess the black bag,
Exhibit P9, or the drugs in it for the purpose of trafficking but decided that he
did possess the sling bag, Exhibit P4, and the drugs in it for that purpose, you
would have to find him not guilty of the offence charged.
F
In strict legal theory, that is an incorrect statement of the law. But if the
prosecution has chosen, no doubt because of the evidence available to them
when preparing for trial, to charge the possession of both the drugs the
prosecution say were in the sling bag and the drugs which they say were in the
black bag as one offence, I am directing you that if you come to that decision
G or conclusion, you should find the defendant not guilty of the offence charged.
But in saying that, I want to remind you that just as much as it is the
prosecution’s case that the defendant was in possession of both sets of drugs, it
is emphatically the defendant’s case that he was not. The issue of him being in
possession of just the drugs in the sling bag has not been a live issue in this
H trial.’
16. In respect of that last remark, the judge was right: it was not the
applicant’s case that he was in possession of the 1st batch of drugs but not
the 2nd. His defence was that he was in possession of neither. Possession of
one batch as against the other was therefore never a live issue at trial.
I 17. The question remains, however, notwithstanding that it was never the
prosecution nor the defence case that the applicant was in possession of part
7. AB, p 280D-I.
8. AB, p 25F-Q.
only of the dangerous drugs seized, whether the judge should have left this A
alternative scenario to the jury. McWalters JA thinks it should have been
and relies upon the judgment of the Court of Final Appeal in Ho Hoi Shing
v HKSAR.9
18. The case of Ho Hoi Shing was not, however, relied upon or
addressed by either party at the appeal and we have not heard argument as B
to whether its principle extends to circumstances such as these, where,
instead of an alternative verdict in law (as with manslaughter in place of
murder, or indecent assault in place of rape), there is an alternative view of
the facts but the same verdict in law. The statement of Callinan J in Gilbert
v R,10 relied upon in the judgment of McWalters JA, and cited with approval C
at para 23 of the Court’s judgment in Ho Hoi Shing, was, as in Ho Hoi
Shing, made in the context of an allegation of murder and the possible
alternative verdict of manslaughter.
19. It must surely be commonplace for juries to take a particular view of
the facts which may be rather different from the view promoted by the D
prosecution, yet convict as charged. Since they are the finders of fact, they
are routinely directed that what they make of the evidence and the facts is
a matter entirely for them. The appellate court’s function is, among other
things, to determine whether the evidence amounted to the offence alleged
in accordance with correct directions in law. I myself think it unlikely that E
the Ho Hoi Shing principle extends to obliging the judge to canvass all
possible permutations of fact in his summingup, including those not even
put forward by the defendant in evidence, where the verdict would be the
same in any event. If that were the position, it could lead to our appellate
courts being besieged with complaints that the judge did not articulate every F
conceivable factual scenario, even those not canvassed in evidence,
notwithstanding that the verdict would have been the same.
20. In this area of the criminal law, juries are routinely directed,
particularly where there is a cocktail of different dangerous drugs in the
defendant’s possession, that they do not have to be satisfied so that they are G
sure that the applicant was trafficking in all of the drugs in question, as long
as they are satisfied that he trafficked in some of them. In HKSAR v Yu Wai
Nang,11 for example, the Court approved what I understand to be a common
direction in such circumstances:12
‘ It is perfectly possible for an addict-drug dealer to intend to sell part of the H
drug in his possession and reserve the rest for his own consumption. Whether
this is so is a question of fact for the jury. The prosecutor was entitled to
advance this as a common sense proposition for the jury’s consideration. There
was no cause for any interference by the judge, who correctly stated what the
law is in this regard: I
9. Ho Hoi Shing v HKSAR [2008] 5 HKC 57, (2008) 11 HKCFAR 354.

10. Gilbert v R (2000) 201 CLR 414, at 441.
11. HKSAR v Yu Wai Nang [2015] HKCU 200 (unrep, CACC 383/2013, 27 January 2015).
12. Ibid, at para 16.
[2019] 1 HKC (Macrae VP) 187
A ‘ … I should tell you that it is not necessary for the prosecution to satisfy you
that the defendant possessed the entire quantity of drugs, that is the 18.53
grammes of ‘Ice’ for the purposes of trafficking. If you are satisfied that he
was in possession of some of these drugs for the purposes of trafficking in
them, that is sufficient for you to convict of trafficking. But if you are not
B satisfied that he was in possession of any of these drugs for the purposes of
trafficking, or think he may not have been, then you must acquit him of this
charge of trafficking but convict him of the lesser alternative of possession of
drugs’.’
21. In HKSAR v Wong Suet Hau & Anor,13 the Court, in the context of
C a defence of simple possession where the offence was trafficking, said
this:14
‘ The principle is of course well-established that where a part of the drugs
referred to in a drug trafficking charge is proved to have been possessed by a
D defendant for the purposes of trafficking, this will be a sufficient basis for a
finding of guilt on a charge of trafficking, even though a proportion of the same
drugs is or may have been for the defendant’s personal consumption.’
Pausing here, this statement of the law provides the answer to Mr McCoy’s
further extension of his complaint that, because of the small quantity of the
E ketamine component in the count, there was a possibility that it might have
been for the applicant’s own consumption rather than trafficking and,
therefore, there ought to have been a third count dealing solely with the
ketamine. However, it was the prosecution’s case that the applicant was
trafficking in all the drugs inside the flat, including the ketamine: it was the
F defence case that he was in possession of none of the drugs, not even for his
own consumption. I can see no warrant for removing the ketamine into a
separate count to cater for a possibility which was never canvassed in
evidence and was neither the prosecution nor the defence case.
22. In the case before us, the judge decided not to give the direction
G sought by the prosecution,15 namely that the jury may convict even if they
found that only some of the drugs particularised in the count were for
trafficking, because he formed the view that ‘the safest course of action’, on
the evidence and in the wake of counsel’s speeches, was to give an ‘all or
nothing direction’; accordingly, he directed the jury in terms that if they
H were sure that the applicant was in possession for the purposes of trafficking
of the smaller quantity of dangerous drugs in the sling bag, but not in
possession for the purposes of trafficking of the larger quantity in the black
bag in the bedroom of Room A, they must find him not guilty of the count
on the indictment.
I 23. Mr McCoy argues that it would have been difficult for the jury to
obey the judge’s direction to acquit if they found that he was in possession
13. HKSAR v Wong Suet Hau [2002] 1 HKLRD 69, [2002] HKCU 108.
15. At para 9 supra.
for the purposes of trafficking of the contents of the sling bag only, because A
they would effectively be allowing him to go free. I do not agree. The
response to this submission derives from the trust we place in the jury
system. One of the most accepted expressions of that trust is to be found in
the judgment of Lord Hope in Montgomery v HM Advocate,16 itself a case
of murder, in which he began by stating that:17 B
‘ the entire system of trial by jury is based upon the assumption that the jury
will follow the instructions which they receive from the trial judge and that they
will return a true verdict in accordance with the evidence.’
24. Lord Hope went on to cite high authority in Canada,18 Australia19 C
and Ireland20 to the effect that the system of trial by jury must proceed on
this assumption. It may also be noted that this particular statement by Lord
Hope has been specifically cited with approval in Hong Kong in the second
Court of Appeal decision in HKSAR v Kissel.21
25. In the Australian High Court case of R v Glennon, to which decision D
Lord Hope was referring, Mason CJ and Toohey J had emphasised that the
law:22
‘ proceeds on the footing that the jury, acting in conformity with the instructions
given to them by the trial judge, will render a true verdict in accordance with E
the evidence,’
and that:
‘ to conclude otherwise is to underrate the integrity of the system of trial by jury
and the effect on the jury of the instructions given by the trial judge.’ F
26. More recently, in Dupas v also a murder case, the Australian
R,23
High Court, comprising two current nonpermanent members of the Court of
Final Appeal, added this gloss, that:24
‘ the assumed efficacy of the jury system of which Windeyer J spoke, whereby G
the law proceeds on the basis that the jury acts on the evidence and in
accordance with the directions of the judge, represents the policy of the
common law and is more akin to a species of ‘constitutional fact’, in the sense
of that term explained by Heydon J in Thomas v Mowbray.’
27. In my judgment, as an appellate court, we must proceed on the H
premise that the jury will have faithfully abided by and obeyed the judge’s
16. Montgomery v HM Advocate [2003] 1 AC 641.

17. Ibid, at 647B.
18. R v Corbett [1988] 1 SCR 670. I
19. R v Glennon (1992) 173 CLR 592.
20. Z v Director of Public Prosecutions [1994] 2 IR 476.
21. HKSAR v Kissel [2014] 1 HKLRD 460, at para 115.
22. Montgomery v HM Advocate [2003] 1 AC 641, at 674D-E.
23. Dupas v R (2010) 241 CLR 237
[2019] 1 HKC (Macrae VP) 189
A instruction. For appellate courts to yield too easily to the notion that they
might not is to erode trust in our jury system and ultimately to undermine
our legal constitution.
28. It follows that I cannot, with respect, agree with McWalters JA that
what was put to the jury was ‘likely to confuse them as to the law and tempt
B them into overconvicting the applicant’. The jury were given a very simple
direction, so as to avoid what the judge conceived to be the danger of
confusion, which direction it seems to me they must have followed.
29. I would add, although I would not suggest it is determinative of the
issue, that the jury convicted the applicant of a count which included an
C allegation that he had also trafficked in 2.88 grammes of powder containing
2.08 grammes of ketamine, quite apart from the ‘Ice’ component of the
charge. Yet, the ketamine was only found in the black bag in the bedroom
of Room A: there was no ketamine found in the sling bag. Quite apart from
the judge’s direction to acquit if they found that he was not in possession for
D the purposes of trafficking in the black bag, it seems to me that they must
have been faithful to the direction and convicted the applicant of both
batches of dangerous drugs because they convicted him of trafficking in
ketamine as well.
30. More importantly, we must always remember that defence counsel
E had the conduct of the defence at trial. Issues of how to deal with the charge,
what lines of defence to pursue and what submissions to make were within
his discretion as trial counsel. He evidently decided that, in view of the way
the prosecution were promoting their case, he would advocate an ‘all or
nothing approach’. He made a strong submission to the jury on that basis,
F as he made clear to the prosecution and the judge he would, which resulted
in the judge agreeing to give the direction he did. He did not invite the
prosecution or the judge to split the count into two and, as I have observed,
when the judge indicated what he proposed to do shortly before his
summingup was due to commence, defence counsel said nothing
G whatsoever. I have wondered why that should be, given that it is now
suggested the direction was unfair and prejudicial to the applicant.
31. If I may suggest the answer, defence counsel’s tactic was not to risk
the jury convicting his client of part of the charge but to take the chance that
they might acquit of the whole charge. That was a bold line to take, but it
H was one accepted by the judge, because he directed the jury that if they were
unsure of the applicant’s possession of the drugs in the bedroom, they must
acquit altogether. Unfortunately for the applicant, the jury convicted.
Nevertheless, the applicant took his chance and failed.
32. I have myself practised as an advocate in the criminal courts of Hong
I Kong for well over 25 years. I can imagine many defendants in my own
experience who would have been more than willing to take the risk of being
convicted of possession for the purposes of trafficking in all of the drugs
particularised, rather than in just part of the drugs, in exchange for the
chance of walking out of the dock altogether. Defendants are keenly aware
of the sentences they are likely to receive under various sentencing A

guidelines in Hong Kong, based as they are primarily upon the quantity of
narcotic present in the drug seized. Had the applicant been convicted of
possession for the purposes of trafficking in the drugs in the sling bag only
(22.6 grammes of ‘Ice’), he would have faced a sentence after trial of just
under 8 years’ imprisonment, applying the relevant guidelines in HKSAR v B
Tam Yi Chun25 arithmetically. For all of the drugs in both the sling bag and
the bedroom of Room A (85.70 grammes of ‘Ice’ and 2.08 grammes of
ketamine), he was looking at a sentence after trial of just over 11 years’
imprisonment. In fact, he was sentenced to 10 years’ imprisonment. To go
for the chance of a complete acquittal at the risk of an extra 3 years’ C
imprisonment for the drugs in the bedroom on top of the drugs in the sling
bag does not seem to me to be an unreasonable tactical gamble. Indeed, one
member of the jury voted for a complete acquittal.
33. However, the gamble having failed, the applicant now effectively
complains about the tactic. As McWalters JA puts it, ‘despite ‘having his D
cake and eating it’, the applicant did not get the verdict he wanted’.26
34. I would agree that had the drugs been divided into two counts
dealing with the 1st batch and the 2nd batch of drugs respectively, this point
could not have been argued. However, the prosecution took the view that
the applicant was trafficking in all of the drugs and that was the charge they E
preferred. The post-record of the applicant’s answer to caution upon arrest
and the subsequent record of interview, which were both ruled admissible
in evidence, would, in addition to his possession of the keys, have fortified
the prosecution’s view that the applicant was in possession of all of the
drugs. The defence case was that the applicant was in possession of none of F
the drugs; not even for his own consumption. That is how the battle lines
were drawn on the evidence.
35. The possibility that the applicant might have been in possession for
the purposes of trafficking of only part of the drugs was first canvassed after
the evidence concluded. While it was never the applicant’s case that he was G
in possession of the 1st batch but not the 2nd, it was the defence who argued
for an ‘all or nothing’ verdict. It seems to me that that must have been done
for tactical reasons, with the obvious consent of the applicant. Were it
otherwise, defence counsel would have invited the judge to order the
splitting of the indictment. Instead, the judge fell in with defence counsel’s H
approach, which ultimately failed before the jury.
36. Even if defence counsel did not do what he did for tactical reasons,
in my judgment we must proceed on the basis that the jury followed the
judge’s direction that if they thought the applicant was only in possession
of the 1st batch of drugs, but unsure if he was in possession of the 2nd batch I
of drugs, then they must acquit altogether. I see no reason to think the jury
25. HKSAR v Tam Yi Chun [2014] 4 HKC 256, [2014] 3 HKLRD 691.
26. At para 58 infra.
[2019] 1 HKC (McWalters JA) 191
A would not have faithfully followed that direction.

37. I would refuse leave to appeal and dismiss the appeal against
conviction.
McWalters JA:
B
38. I do not agree with the judgment of Pang JA in respect of grounds
3 and 4 for the following reasons.
39. I accept that the resolution of these grounds come down to what it
C
was the jury had to decide within the factual context of the case. On the
prosecution case the applicant was intercepted outside of a flat in physical
possession of two packets of Ice. Within the flat the police found a bag
containing 11 packets of Ice and many small resealable transparent plastic
bags. Also within the flat there was an electronic scale. The scale and the
D plastic bags are tools used for packaging drugs into retail quantities.
40. Armed with a full confession to trafficking in both sets of drugs,
unsurprisingly, the prosecution charged the applicant with unlawfully
trafficking in respect of all the drugs. However, to be able to prove their
case they had to be able to link the applicant to the flat as he was not the
E tenant of it. The tenant of the flat was a Thai woman called Wai Wai whom
the applicant claimed offered prostitution services from the flat.
41. To link the applicant to the flat the prosecution relied on admissions
from the applicant that he was an occupant of the flat and that all the drugs
in it belonged to him and from the fact that he was found in possession of
F
keys to the flat.
42. The applicant’s case was that all the admissions made by him were
fabricated by the police and were involuntarily made. No drugs and no keys
to the flat were found on him and he only attended the flat from time to time
G to use the sexual services offered by Wai Wai.
43. In discussing the evidence in his closing address for the applicant, his
counsel, Mr R Donald referred to the existence of a number of possible
scenarios. There is no doubt that the applicant’s primary defence was an
assertion that none of the drugs were his and this was Mr Donald’s first
H scenario. But part of this defence was an assertion by Mr Donald that all the
drugs belonged to Wai Wai.27 This was Mr Donald’s second possible
scenario. If the jury found that either of these scenarios may be the truth
then they would have to acquit the applicant. However, Mr Donald,
anticipating that the applicant’s evidence might not be accepted by the jury,
I devised a secondary defence to cover that eventuality. This was his third
scenario. This secondary defence was that the drugs in the flat belonged to
the woman Wai Wai and not the applicant but that the applicant did have
27. See AB 175A-N; 178B-I.

possession of the drugs in the sling bag, perhaps having just purchased them A
from Wai Wai.28
44. He could only succeed in persuading the jury of this third possible
scenario if the jury concluded that they could not rely on the applicant’s
admissions and also that they could not rely on the police claim that the
keys to the flat were found on the applicant. In respect of this latter point, B
it would be no great stretch to conclude that if the police had acted
improperly in relation to the admissions then they may also have done so in
respect of their claim that the keys to the flat were found on the applicant.
The fact that the keys were on a keyring to which was attached the image
of a female cartoon figure was also used to suggest that it was a keyring that C
was more likely to belong to a woman rather than a man.
45. There was other evidence that Mr Donald could rely on in support of
this secondary defence or third possible scenario. The first was that the
drugs in the flat were found in a bag in the bedroom, on a table beside the
bed, secondly, in addition to the Ice there was a quantity of ketamine, so D
small as to be consistent with it being for consumption rather than
trafficking. Finally, there were the facts that Wai Wai was both a drug abuser
and also a convicted drug trafficker.29
46. All these facts, which point to the possibility of Wai Wai being in
possession of the drugs in the bedroom of her flat, were not in issue and, in E
isolation, are quite compelling primary facts from which an inference could
be drawn that Wai Wai was in possession of the drugs on her bedside table.
That is why I do not agree with the dismissive way in which the judge dealt
with this woman’s drug convictions.30
47. Of course, there was very compelling evidence which stood in the F
way of drawing an inference that the drugs were Wai Wai’s and this was the
evidence of the applicant’s admissions and of his possession of the keys to
the flat. If accepted, this was very strong, indeed overwhelming, evidence
that it was, in fact, the applicant who was in possession of the drugs in the
flat. But this evidence was contested and it would be usurping the function G
of the jury for us to say that the jury would have to accept this evidence.
48. It was, therefore, always a live issue in the case, arising from both the
primary and secondary defences, that the applicant was not an occupant of
the flat and that the drugs must have belonged to Wai Wai. By his secondary
H
defence strategy all that Mr Donald did was to add a variation to his primary
strategy by introducing the alternative possibility that the applicant might
have been in possession of the drugs in the sling bag, which drugs he may
have purchased from Wai Wai.
49. In fairness to the judge this secondary defence strategy would not I
have become known to him and the prosecutor until the end of the evidence.
28. See AB 175P-T; 178J-N.

29. See AB 11, para 4 of the Further Admitted Facts.
30. See AB 32Q-T
[2019] 1 HKC (McWalters JA) 193
A As an evidential alternative it was always a possibility that could arise if the

jury rejected the police evidence of the applicant’s admissions and the
finding of the flat keys but accepted their evidence as to the finding of the
drugs in the sling bag. But it was not until Mr Donald’s closing address that
it became apparent that he would be inviting the jury to consider this as one
B of the possible ‘scenarios’. The events unfolded in this way.
50. At 2:31 pm on 11 December 2015, just before he commenced his
closing address to the jury, Mr Laskey, the prosecuting counsel, raised with
the judge his concern that the jury might have a reservation as to the
applicant’s possession of the drugs in the flat. The exchange between Mr
C Laskey and the bench is set out in para 77 of Pang JA’s judgment.
51. After this exchange the jury were called back into court and Mr
Laskey addressed the jury in the course of which he told them:
‘ And if, even at the end of the day, in the face of what we say is strong
D evidence, strong, compelling evidence, you are satisfied only with regard to the
drugs in the sling bag, you would then return a proper verdict of guilty to the
charge he is facing.’31
52. Mr Donald then addressed the jury and what he told them was
diametrically opposed to what had been said by Mr Laskey. What he said
E is set out at para 74 of Pang JA’s judgment. The court then adjourned to 15
December 2015 when the judge commenced his summing-up. What he said
is set out at para 76 of Pang JA’s judgment.
53. Mr G McCoy SC, together with Mr Donald, appeared for the
applicant on this appeal and it was his argument that it was at the stage that
F Mr Laskey recognised that it would be open to the jury to return a verdict
of guilty only in respect of the drugs in the sling bag that he, Mr Laskey,
should have applied to amend the indictment.
54. There is no doubt that when Mr Laskey addressed the judge he was
aware that, on the evidence, an alternative verdict was available to the jury
G and he had prepared his address to the jury with this in mind. I agree with
Mr McCoy that in order to deal with this situation Mr Laskey should have
applied to amend the indictment by laying an alternative count of
unlawfully trafficking in a dangerous drug, particularizing in that
alternative count only the drugs that were in the sling bag.
H
55. The relevant legal principles governing the duty of the judge in such
a situation are set out in the judgment of Chan PJ in giving the judgment of
the Court of Final Appeal in Ho Hoi Shing v HKSAR.32 Those principles
make clear that even though a case may be fought on a particular basis, here
the primary defence strategy, if the evidence throws up other possibilities,
I such as the secondary defence strategy, on which a reasonable jury might
return an alternative verdict, then the judge is obliged to direct the jury on
31. AB 160H-I
32. (2008) 11 HKCFAR 354
their right to return these alternative verdicts. This is so even if the A

alternative is inconsistent with the defence run by the defendant’s counsel.
The threshold requirement is that ‘the evidence which may be relied on to
support an alternative verdict must not be so incredible or tenuous or
uncertain that no reasonable jury could have accepted it.’33 This threshold,
the Court of Final Appeal said, is a low one. B
56. I am of the view, therefore, that, in the present case, there was a
sufficient evidential basis for the legal principles of Ho Hoi Shing to apply.
That being so the judge had to direct the jury that they could return a verdict
of guilty confined only to the drugs in the sling bag. The simplest and most
C
effective way of placing such an alternative verdict before the jury was to
amend the indictment by laying an alternative count particularised in the
way I have earlier suggested.
57. Everyone in the court room, the judge included, recognised that the
jury had to be allowed to consider the secondary defence strategy and, D
therefore, had to be directed in respect of it. There was no suggestion that
it was not properly before them and that they should be directed to ignore
this as a possible scenario that could ground an alternative verdict. The
problem arose as to what direction to give only because the prosecution did
not amend the indictment by laying an alternative count. E
58. As a result, Mr Donald was able to persuade the judge that with the
indictment drafted as it was, with only a single count particularising all of
the drugs, the case became an ‘all or nothing’ case with only one verdict
available, namely guilty or not guilty of the whole amount of the drugs. He
did this whilst at the same time trying to persuade the jury that, factually, F
it was not an ‘all or nothing’ case and that they should harbor a reasonable
doubt that the drugs in the flat belonged to the applicant. Nevertheless,
despite ‘having his cake and eating it’, the applicant did not get the verdict
he wanted.
G
59. The judge’s direction, though on its face favourable to the applicant,
did not, in reality, leave the jury with the alternative verdict presented by the
evidence. The alternative verdict presented by the evidence would result in
the applicant being convicted of trafficking but only in respect of the
smaller quantity of drugs in the sling bag. The effect of the judge’s H
direction, which he told the jury was wrong in law but which they
nevertheless had to apply, and which contradicted the prosecutor’s
statement of the law, was that they would have to acquit the applicant
completely.
60. Such a direction might be superficially attractive to the applicant, I
from where he sits in the dock, but the jury may react adversely to his
interests by being placed in the situation of having to make such a stark
33. Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at 362C-E.

[2019] 1 HKC (Pang JA) 195
A choice. As was said by Callinan J in Gilbert v R:34
‘ It is contrary to human experience that in situations in which a choice of

decision may be made, what is chosen will be unaffected by the variety of the
choices offered.’
B 61. In my view there was an alternative verdict available to the jury in
respect of the drugs in the sling bag, the evidence in support of it having met
the Ho Hoi Shing threshold. That alternative verdict was not put to the jury.
What was put to the jury was such as only likely to confuse them as to the
law and tempt them into over-convicting the applicant.
C 62. This is not a suitable case for the proviso as it is impossible to
conclude how the jury might have reacted had the alternative verdict been
properly placed before them. As Chan PJ said in Ho Hoi Shing:
‘ It is impossible to speculate how the jury arrived at their verdict, especially

D where they had not been directed on all the viable alternatives. The jury were
entitled to have the entire picture and all the viable alternatives placed before
them. Their approach to the evidence might have been different depending on
the options they have been given.’35
63. I would allow the appeal, quash the conviction and order a retrial.
E
Pang JA:
64. Before Deputy Judge Lugar-Mawson and a jury, the applicant was
convicted after trial36 of a single count of trafficking in 85.7 grammes of
F ‘ice’ and 2.08 grammes of ketamine.37 He was sentenced to 10 years’
imprisonment. He seeks leave to appeal both his conviction and sentence,
the latter being an out of time application.
THE PROSECUTION CASE

G
65. Quoted below is an initial part of the summing up during which the
Deputy Judge summarised the prosecution case to the jury. I can scarcely do
better than to adopt it:38
H ‘ The prosecution’s case is this. They say that on 17 March of [2015], around
8.40, from the staircase between the mezzanine floor to the 1st floor of the
premises in Fuk Wing Street, the first prosecution witness, that is DPC8627,
saw the defendant leaving Room A on the mezzanine floor. He rushed forward
34. (2000) 201 CLR 414 at 441. Quoted with approval by Chan PJ in Ho Hoi Shing v HKSAR (2008)
I 11 HKCFAR 354 at 364I-J.
35. Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at 364E-F.
36. By a majority verdict of 6 to 1.
37. In this judgment, the quantity of dangerous drugs is indicated by way of their pure narcotic
content.
38. Appeal Bundle, pp 12I – 13Q; judge’s summing up.
to intercept him. He says the defendant was in the act of leaving and the door A
to the flat, or the unit, was not fully closed. The officer says that he shouted out
‘police’ loudly and that the defendant attempted to retreat back into the room.
The officer says that he interposed himself between the defendant and the door
and caught hold of both of the defendant’s arms to prevent him from going back
into the room. He says there was a struggle in the doorway and that the second B
prosecution witness, who is Detective Constable 8820, pushed the defendant
and 8627 into the room. He says, that is 8627, that he and the defendant fell
onto the floor. The defendant fell onto his back, face upwards, and 8627 was on
top of him, facing him.
C
The third prosecution witness, DPC9684, assisted the first prosecution witness
in subduing the defendant and 9684 told you that, in doing that, he half-knelt
on the defendant’s thigh with his right knee. The defendant was subdued. He
was hauled to his feet by 8627 and 9684 and 8627 handcuffed him behind his
back.
D
Around this time, the second prosecution witness, 8820, enters the bedroom of
Room A in the unit and finds a woman there. 8627 searches the sling-bag,
Exhibit 4, which he says the defendant was carrying across his chest, and in it,
8627 says he found two packets of what he suspected to be dangerous drugs,
and he arrested and cautioned the defendant. In reply, he says, the defendant E
said: ‘Ah Sir, I got the dangerous drug ‘Ice’ for my own consumption. It was
to be given to my friends’.
8820 searches the bedroom in the unit and, in the bedroom, he finds a black bag,
which is Exhibit 9. It is opened and inside it suspected dangerous drugs in 11
packets, together with many small resealable transparent plastic bags, are F
found. The defendant is asked what the suspected dangerous drugs is and he is
cautioned, and in reply, he says: ‘Ah Sir, the dangerous drug ‘Ice’ belongs to
me. It has nothing to do with my girlfriend’.
The flat is searched. The only other things that are found is what is called an
‘Ice’ pot and a pair of electronic scales. The defendant is taken to Cheung Sha G
Wan Police Station and there he confirms the verbal admissions that he made
earlier in the unit. He is re-cautioned and he repeats his earlier admissions.
Later, both at Sham Shui Po Police Station and back at Cheung Sha Wan Police
Station on the next day, he is interviewed under caution and the interview is
recorded on a video disk which we will see. So that, in summary, is the H
prosecution case.’
66. The black bag, one might add, was a flat zip-holder that was
relatively small in size. Together with the electronic scales and ‘ice’ pot, this
bag was found lying on top of a makeshift bedside table in the bedroom.39
It contained the bulk of the ‘ice’ (ten bags, 63.1 grammes) as well as all the I
ketamine in this case (one bag, 2.08 grammes).40 The rest of the ‘ice’ (two
39. Appeal Bundle, p 195; photo 14.

40. Appeal Bundle, p 132; list of exhibits.
[2019] 1 HKC (Pang JA) 197
A bags, 22.6 grammes) was in the sling bag.41 Respectively, the drugs inside
the sling bag and the black bag are referred to as the 1st and 2nd batches of
drugs in this judgment.
67. With regard to his video recorded interviews, the applicant had, as at
the scene, admitted to being the owner of all the drugs in question.
B Categorically, he had stated that the 2nd batch of drugs was his. It had
nothing to do with his girlfriend, he said.42
68. To give the above statement context, a woman called Wai Wai was
indeed present in Room A when the police gained entry. She was the tenant
C of those premises.43 Otherwise, the applicant’s full narrative was as follows:
it was a few hours before his arrest that he had bought all the drugs in
question, for his own consumption;44 they included a quantity of drugs that
he had purchased on his friend’s behalf,45 these drugs were in any event all
brought back to Wai Wai’s place which was also where he lived;46 there, he
D
consumed some of the drugs using the ‘ice’ pot;47 the remainder of the
drugs, he had ‘saved’ in the black bag ‘for some other time’.48 Wai Wai, the
applicant added, was a Thai sex worker whom he had patronised for some
months;49 she and two ladies whom he did not know were chatting when he
returned to Room A with all the drugs.50
E 69. Moving on in the same narrative, the applicant said he was
‘jobless’,51 but had ‘won a soccer bet’, which was why he had a large
amount of cash in his sling bag ($29,440).52 It was also why he could afford
to purchase the drugs in bulk.53 He said the small empty bags in the black
bag were for him ‘to separate and consume ‘ice’’,54 whereas the electronic
F scales were for checking his purchase and to separate his own share of
drugs.55 When asked why the quantity and packaging of the 1st and 2nd
batches of drugs should be different, the applicant said it was because he
had ‘separated them too’.56
70. Apart from these mixed records of interviews, the prosecution had
G also called evidence on street value ($34,069 worth of ‘ice’, $340 worth of
ketamine) and consumption (the ‘ice’ was good for 285.7 days’ use by one
41. Ditto.
42. Appeal Bundle, p 75, counters 42 – 47.
43. Appeal Bundle, p 8; admitted facts, para 7. She started renting the place in November 2014.
H 44. Appeal Bundle, p 110, counter 52 and p 123, counter 229 – p 124, counter 234.
45. Appeal Bundle, p 108, counter 20.
47. Appeal Bundle, p 114, counter 116 and p 116, counter 144.
49. Appeal Bundle, p 115, counter 131 – p 116, counter 136.
I 51. Appeal Bundle, p 122, counter 212.
55. Appeal Bundle, p 123, counter 225 – 228.
person).57 Emphasising the fact that the applicant was caught leaving Room A
A with a sizeable quantity of ‘ice’, the prosecution case was that, in respect
of the 1st batch of drugs at least, the applicant was clearly trafficking. In
respect of the 2nd batch of drugs, the applicant was exercising control and
possession. In any event, it was open for the applicant to be convicted on
the basis that he was trafficking in the 1st batch of drugs alone. Precisely, B
the prosecution case was put to the jury in these terms (partly italicised for
emphasis):58
‘ So leaving the premises in his sling bag, he has with him just under $9,000’s
worth of drugs, that would be sufficient for personal consumption of one person C
for 75 days. And again, you may think that that does not mean personal
consumption, it means trafficking. Prosecution say he had those drugs with him
in his possession for trafficking, at least in part, and you don’t have to be
satisfied that all of it was for trafficking, you must be satisfied that some of it
was for trafficking.
D
Now, in relation to the rest of the drugs, they, as you know, are in the black bag
you see. You can see it again should you wish to, P9, 11 small bags each
containing drugs. That’s obviously a larger quantity, and that is on the table with
the other items …. . .
Now, it is the prosecution’s case, they have always accepted that in the bedroom E
where that table was, with the items on it, was also Wai Wai. Prosecution invites
you to consider that his admissions at the scene and in more detail so that you
can actually watch him admitting in the video-recorded interviews, are to the
effect those were not Wai Wai’s drugs, they were his drugs. They were his drugs.
They were his drugs, for his personal consumption, and for a friend.
F
………
Again, that’s the evidence, the prosecution say, of him possessing or controlling
at least those drugs that were found in the black bag - I hold up P9 - on the table
in the bedroom.
G
You will receive directions, it won’t be today, and it may indeed not be till
Tuesday morning, but you will receive directions, and I hope that I shall be
right in saying the prosecution do not have to satisfy you that all the drugs were
in his possession or control, and that they were, at least in part, for trafficking.
They must satisfy you that some of the drugs were in his possession or control,
H
and in part, for trafficking.
And if, even at the end of the day, in the face of what we say is strong evidence,
strong, compelling evidence, you are satisfied only with regard to the drugs in
the sling bag, you would then return a proper verdict of guilty to the charge that
he is facing.’ I
71. As an aside, the applicant had ‘lost his shield’ under section
57. Appeal Bundle, p 41A – F; judge’s summing up.

58. Appeal Bundle, p 159J – 160I; prosecution’s closing speech.
[2019] 1 HKC (Pang JA) 199
A 54(1)(f)(ii) of the Criminal Procedure Ordinance and it was revealed that he

had previous convictions for:59
‘ …… theft, burglary, what is known as possessing false instruments …… a

conviction for altering a vehicle registration plate and he has two previous
B convictions for possessing, just possessing, dangerous drugs.’
DEFENCE POSITION
72. Directing his synopsis to the defence case, this is what the Deputy
C Judge said:60
‘ The defence case is diametrically opposed. It is the defence case that the
police have manufactured a case against him. In colloquial terms, they have
fitted him up. He says that he had gone to Room A to have sex with Wai Wai,
the Thai prostitute who lives there. He is one of Wai Wai’s regular customers.
D He had come across her six months before on an internet pornographic site and
he had been there about once a week and estimates he had made about 20 visits
to the woman.
He says, when he got there, there were two other women in the flat with Wai
Wai and they were speaking in a language he did not understand. He says they
E then left and he was about to go and get a shower. He says at around or at the
same time as the two women left, two men entered the unit and they said,
‘Police, don’t move’. On entering, they immediately handcuffed him behind his
back and arrested him. He asked them why, and he says that one of the police
officers says, ‘Don’t move the fuck of you’. He says he did not struggle. He
F says that one of the police officers asked him, ‘Where are those things kept?’.
He did not know what the police officer meant and he saw that two other police
officers had entered and gone into the bedroom. He was again asked, ‘Where
are those things?’. He asked, ‘What are those things?’ and the two police
officers then assaulted him. He described how; he says it was very forceful, it
lasted between two to three minutes and there were about 20 to 30 blows.
G
Then he says he heard someone shout out ‘Something has been found’ and he
says another police officer, it is the one who commanded the team, approached
him and asked him if those things were his and he said ‘No’. He said the two
police officers holding him then struck him again about 20 to 30 times, again
for a similar period of time, two to three minutes. Again he was asked whether
H those things were his and he was struck again, and he was asked again for the
third time and, after a little while, he said, ‘If you say those things are mine,
then they are mine’. He was told to squat down and he did so and he was later
taken back to Cheung Sha Wan Police Station.
He says that when he got to Cheung Sha Wan Police Station, the one who was
I
in charge approached him. He told him to be a good boy and admit everything.
He promised to give him bail and not press any charges against the woman Wai
59. Appeal Bundle, pp 19S – 20E; judge’s summing up.

60. Appeal Bundle, pp 13R – 15L; judge’s summing up.
Wai. The defendant says, ‘I said nothing. I remained silent’. He says, ‘And then A
the two police officers wrote up everything and let me sign in their notebook.
I wanted to read it but he said ‘What the fuck you want to read it for? Just get
it down and go’’. He said he did not know what the contents of the notebook
meant, he did not know what the contents were that he signed. He said he did
not want to sign it but he signed it because he wanted to get bail and see a B
doctor. He wanted to see a doctor because he was badly injured as a result of
the assaults by the police.
He said he agreed to take part in the first video-recorded interview because ‘he
said he would let me be bailed out and not press any charges against the girl’.
The Detective Sergeant said that at Cheung Sha Wan Police Station in that C
room. He said he did not want to take part in the video-recorded interviews.
Later on, he went on to say - and I will deal with this later - that he was coached
as to what he had to say in them.
The defendant told you in his evidence that the dangerous drug found in the
sling-bag is not his and neither are the dangerous drugs found in the bedroom D
in the black bag. He says the woman Wai Wai is not his girlfriend, that he does
not live with her in Room A.’
73. Further into the summing up, the jury was reminded of the evidence
of the applicant’s brother.61 He spoke of sharing a flat62 and running a small
business together with the applicant,63 no doubt to counter what was E
recorded in the police interviews. Also revisited was the testimony of a
doctor who noted,64 and in court described, the applicant’s injuries upon the
applicant’s remand into custody.65 It was recapitulated that the applicant
had complained to CAPO,66 and that two other women of Thai nationality
were in fact intercepted outside Room A at or about the time of the raid.67 F
There was practically no contact evidence regarding any of the drug
wrappings, the Deputy Judge added.68 Four months after the applicant’s
arrest, Wai Wai was caught, and later convicted, of one minor trafficking
offence, one simple possession offence and one possession of drug-taking
apparatus offence.69 G
74. In short, the defence position was that, not only was the applicant
‘fitted up’ by the police, but the drugs must have belonged to Wai Wai, now
known to be a drug trafficker as well as drug user. Contrary to the
prosecution’s proposition, the defence also contended that, unless the
H
61. The 3rd defence witness.
62. Appeal Bundle, p 35H – P.
63. Appeal Bundle, pp 39O – 40I.
64. The 2nd defence witness.
65. Appeal Bundle, pp 31I – 32G.
66. Appeal Bundle, p 36S. I
67. Appeal Bundle, pp 29J – 30K.
68. Appeal Bundle, pp 28S – 29C.
69. Appeal Bundle, p 32H – U. The trafficking offence involved 718 tablets containing 0.07 gramme
of ‘ice’, whereas the possession offence involved 2.86 grammes of ‘ice’ and 10.4 grammes of
ketamine. For these and the drug-taking apparatus offence, Wai Wai was sentenced to the Drug
Addiction Treatment Centre.
[2019] 1 HKC (Pang JA) 201
A applicant was trafficking in all the drugs in this case, the applicant must be
acquitted of the offence as charged. He could not be convicted on the basis
of trafficking in either the 1st or 2nd batch of drugs alone. Again, I set out
what defence counsel had said to the jury in full (italics added for
emphasis):70
B
‘ Now, the prosecution -- the defendant’s been charged with trafficking with all
the dangerous drugs. One charge, trafficking all the dangerous drugs that were
found by the police that day. And as I’ve mentioned before, according to the
police’s version of events, two bags were in his -- two small bags of ‘Ice’ were
in his sling bag as he left, the rest were on the table.
C Now, before you can -- and as I said, it’s only one charge. Before you can
convict the defendant of the offence, you have to find that he was in possession
and control of all those dangerous drugs for which he is being charged. If you
find that he was in possession and control of the two bags and the sling bag, I
submit to you that it’s insufficient to prove -- to find him guilty of all the
D dangerous drugs in the flat. You have to be sure that all the dangerous drugs
belonged to him, that’s what he’s been charged with, all the dangerous drugs,
not just the two bags -- not just the two bags of ‘Ice’ in his sling bag, all of them,
that’s what he’s been charged with. If you think the possibility exist that only
those two bags and the sling bag was his, then I submit to you, you must find
him not guilty.
E
If you believe or it could or may be the case that you believe it is, or you find
it could or may be the case that the drugs on the table in the little black bag
belonged to Wai Wai, then you must acquit the defendant. It’s all or nothing.
Just because he may have had two little bags in his bag doesn’t make him guilty
of the whole lot, because then you can’t be sure -- you are not sure, if you find
F that it’s just the two and not the whole lot, there is a doubt, you must be sure,
come to the conclusion -- the determination that they all belonged to him, and
not, for example, just the two in his sling bag.’
75. It should also be mentioned that, notwithstanding the clear evidence
of the applicant that he had nothing to do with any of the drugs found,
G
defence counsel took the unusual step of canvassing such ‘possible
scenarios’ as the applicant leaving Room A with the 1st batch of drugs
which he had purchased from Wai Wai,71 or the applicant bringing to Room
A the 1st batch of drugs which he intended to share with Wai Wai,72 in his
closing speech. Thus casting Wai Wai as a possible owner of the 2nd batch
H of drugs, but at the same time insisting that this was an ‘all or nothing’ case,
the defence sought to take advantage of the prosecution’s fallback position
(see para 70 above) without any evidential basis.
THE JUDGE’S DIRECTION

I
76. As will become apparent from the latest, or Re-Amended Perfected
70. Appeal Bundle, p 177F – S; defence closing speech.

71. Appeal Bundle, p 175O – S.
72. Appeal Bundle, p 178J – O.
Grounds of Appeal against Conviction (see later), the interlocking issues of A

the way in which the charge was laid (the ‘One Charge Approach’), the
conflicting positions between the prosecution and the defence as to what
sufficed as a basis of conviction (the ‘Conflicting Positions’) and the
direction which the Deputy Judge proffered as a result (the ‘Corresponding
Direction’) are all parts of a major area of contention in this appeal. The B
substance of the first two issues having been explained in the above
overview, it is constructive to set out below the Corresponding Direction:73
‘ In his closing speech on Friday, Mr Donald said this is a case of all or nothing.
If you come to the decision that the defendant did not possess the black bag, C
Exhibit P9, or the drugs in it for the purposes of trafficking but decided that he
did possess the sling-bag, Exhibit P4, and the drugs in it for that purpose, you
would have to find him not guilty of the offence charged.
In strict legal theory, that is an incorrect statement of the law. But if the
prosecution has chosen, no doubt because of the evidence available to them D
when preparing for trial, to charge the possession of both the drugs the
prosecution say were in the sling-bag and the drugs which they say were in the
black bag as one offence, I am directing you that if you come to that decision
or conclusion, you should find the defendant not guilty of the offence charged.
But in saying that, I want to remind you that just as much as it is the
prosecution’s case that the defendant was in possession of both sets of drugs, it E
is emphatically the defendant’s case that he was not. The issue of him being in
possession of just the drugs in the sling-bag has not been a live issue in this
trial.’
77. What actually gave rise to the Conflicting Positions, one might add, F
was the prosecutor’s attempt to adapt his case to what he surmised to be a
likely take of the evidence by the jury and, as can be seen from the
following exchanges, the Deputy Judge left it open to the parties to follow
their own contrasting approaches in their final submissions:74
‘ MR LASKEY: My Lord, before the jury are brought back in, may I just seek G
to address your Lordship to inform you of the way that the prosecution will put
their case, not, I hope, because I’m wrong, but if your Lordship took a view that
it was most unhelpful, your Lordship would have the opportunity to tell me so.
My Lord, primarily, obviously, the prosecution say that all these drugs were in H
the possession or control of the defendant, and that at least a part of them was
for trafficking, possession for trafficking or one of the forms of activities
involving trafficking - in this case, storage, weighing, packaging would seem to
be the obvious ones.
COURT: Well, yes, I think possession for the purposes of trafficking. I
73. Appeal Bundle, pp 25F – Q; judge’s summing up.

74. Appeal Bundle, pp 277 – 279. To be fair to the Deputy Judge, these exchanges took place on a
Friday afternoon, minutes before the commencement of the closing speeches. The Deputy Judge
gave his summing up on the following Monday.
[2019] 1 HKC (Pang JA) 203
A MR LASKEY: Is the safest.

COURT: I think you’re complicating it when you try and differentiate it into
packaging and storage, to be honest.
MR LASKEY: Very well, my Lord. That’s helpful as well.
B COURT: Yes.
MR LASKEY: And I shall keep myself to talking about possession for the
purposes of trafficking.
COURT: Yes.
C
MR LASKEY: And that, obviously, relies on not only what was found, but the
admissions that were made.
COURT: M’m.
MR LASKEY: But, my Lord, having thought about this overnight, and perhaps
D a bit even before that, it is clear that the circumstances of the finding of the
drugs does vary somewhat. As your Lordship knows, two packets were found
in the sling-bag of the defendant that he was carrying as he was leaving the
premises. So he is in direct, physical possession of those items, leaving in the
latish evening with that amount of drugs in two separate packets and a large
E amount of cash.
In relation to the other drugs - as we know, 11 packets of drugs - they were
found on the table in the bedroom of the unit that he was just leaving, but, of
course, where the female was present, the woman Wai Wai.
F He made admissions all the way along that these were his drugs and they were
nothing to do with her, but it did seem to me, thinking through it, that if the jury
took the view that it is possible that in so doing he was not, in fact, telling the
truth, but was seeking to protect her, they might then have some slight
reservation about the finding of the larger quantity.
G My Lord, my point is that the jury would only have to find that one of the
quantities was in his possession or control, and that that possession or control
was with his knowledge and was for the purposes of trafficking.
COURT: Yes.
MR LASKEY: And that’s what I’m intending to say to the jury.
H
MR DONALD: My Lord, can I indicate at this stage that’s directly contrary to
what my submissions are going to be to the jury.
MR LASKEY: Well, so be it.
I COURT: Well, there we are.

MR LASKEY: There we are. Thank you, my Lord.
MR DONALD: Yes.
COURT: Yes. I will -- I’ll hear what you have to say to the jury.
MR LASKEY: I’m sorry, my Lord? A

COURT: I think it -- I will hear what you have to say to the jury.
MR LASKEY: Yes, my Lord. I just felt that -- your Lordship has, in fact,
obviously some days to think about how the jury are to be directed in a
summing-up, but I felt I should just mention that. B
COURT: Right, thank you. Yes, that’s helpful.’
PROCEDURAL HISTORY
78. Before going any further, it should be explained that, when this C
matter first became before this Court on 8 December 2016, it was apparent
to us that one of the three grounds of appeal in the Amended Perfected
Grounds of Appeal against Conviction was falsely premised on a wrong
transcription of a certain question by the prosecutor. It was also pointed out
to the parties that because the 1st and 2nd batches of drugs were, even on D
the prosecution case, differently located, the One Charge Approach may be
open to scrutiny and, depending on the result of that scrutiny, the matter
may have an impact on sentence. It was these observations of ours that led
to the first adjournment and the eventual filing of the Re-Amended
Perfected Grounds of Appeal on 27 March 2017. E
79. At the adjourned hearing on 30 January 2018, however, the question
of whether the applicant was in possession of any keys to Room A was
raised to no clear answer. Given that there was no direct reference on the
point whether in the summing up or anywhere else in the appeal bundle, it
was thought necessary to adjourn the matter after the day’s sitting, with the F
direction that further written submissions, if any, were to be filed upon the
parties completing their enquiry. Despite the additional delay that this has
incurred, this second adjournment has proved to be fruitful in that, via the
parties’ submissions dated 20 March 2018 and 27 March 2018, it is now
confirmed that a working set of keys to Room A was in fact found in the G
sling bag, the bag that the applicant was carrying.75
80. As expected, this evidence was contested at trial on the basis that the
police had planted those keys. But it does explain the comment in the
defence final address that these keys were ‘a female person’s keys’.76 It has
also put in context the remark in the Deputy Judge’s summing up that there H
is ‘no reason why a man cannot have a key ring with a female cartoon
character on it’.77 In any event, the significance of this piece of evidence is
that, if accepted to be true by the jury, it would put the applicant in a
position of unrestricted access to Room A which, in conjunction with other
I
75. Those keys were discovered by the 1st prosecution witness (DPC 8627). The 2nd prosecution
witness (DPC 8820) tested them and found them capable of opening the metal grille and wooden
door of Room A.
76. Appeal Bundle, p 174B.
77. Appeal Bundle, p 36R.
[2019] 1 HKC (Pang JA) 205
A evidence, may impact substantially on the question of who had control and
possession of the 2nd batch of drugs.
THE APPEAL AGAINST CONVICTION
B GROUNDS 3 & 4
81. As explained, the three interlocking issues as identified above (see
para 76) are a major source of contention under the latest version of the
applicant’s grounds of appeal. Mr McCoy SC, who represents the applicant
here but not below, has the following complaints:
C
Ground 3
‘ The learned judge erred in failing to correct in his summing up a misstatement
of law which the prosecutor had made in his closing submissions – that if the
jury was satisfied only with regard to the drugs in the sling bag, a proper verdict
D
of guilty in relation to all the drugs in the black bag would also be returned,
which therefore allowed the jury to improperly convict the defendant on the
particular way the charge he faced had been drafted.’
Ground 4
E ‘ The learned judge erred in failing to properly direct the jury on the distinct and
different quantities and types of drugs found in both the sling bag and the black
bag. By doing so, the learned judge allowed the jury to find the defendant guilty
on the joint charge of trafficking methamphetamine hydrochloride and
ketamine, despite not ever mentioning ketamine in his summing up.’
F 82. When fully developed, Mr McCoy’s argument goes as follows: to
begin with, the prosecution was justified to lay only one charge; but at the
conclusion of all the evidence when the prosecutor became concerned that
there may be different verdicts in respect of different batches of drugs, there
ought to have been a splitting of the charge.
G 83. The charge, Mr McCoy argues, should have been split into three
vis-à-vis the ‘ice’ in the sling bag, the ‘ice’ in the black bag and the
ketamine. Separate treatment was called for in respect of the ketamine
because, given its small quantity and other attending circumstances, it is
unrealistic that any jury would find it to be for trafficking. By
H indiscriminately grouping it together with part or all of the ‘ice’ in a charge
of trafficking, however, the verdict would inevitably be predominated by
the jury’s finding on the ‘ice’ with little or no regard for the ketamine.
84. As things were, the problem with the ketamine is the problem of
‘latent duplicity’ which subsisted equally in relation to the two separate lots
I of ‘ice’ (HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279 at para
131 – 137; Chim Hon Man v HKSAR (1999) 2 HKCFAR 145 at pp 161G
– 162D; R v GNN (2000) 78 SASR 293 at para 32). Although they were
sufficiently large in quantities to each give rise to the inference of
trafficking, there was, as the prosecutor conceded, the possibility of the jury
reaching different verdicts. That notwithstanding, the prosecutor went on to A

advise the jury that if they were satisfied in respect of one then they can be
satisfied as regards both, as it were. That contradicted counsel’s own
concession and was a misstatement of the law.
85. Instead of correcting the prosecutor’s error, however, the Deputy
Judge actually reinforced it by adopting a seemingly opposite approach. In B
directing the jury that this was to be treated as an ‘all or nothing’ case, he
had in fact solidified the unfairness inherent in the duplicitous nature of the
un-severed charge. The applicant was at risk of being found guilty as
regards the ‘ice’ in the sling bag only but, not countenancing the prospect
of letting him off altogether, the jury might nevertheless disregard the C
Deputy Judge and convict him on all the drugs found, as charged (HKSAR
v WWK [2011] 5 HKLRD 584 at para 19 – 20; R v Maxwell [1990] 1 WLR
401 at p 408F – G).
86. Recognising the possible counter-argument that the Corresponding
Direction was in fact favourable to the applicant, Mr McCoy goes on to D
submit that, however well-intentioned the Deputy Judge may have been, in
giving a legal direction which would deprive the jury of certain verdicts, the
Deputy Judge had wrongfully intruded into the fact-finding domain of the
latter. That, he says, is a material irregularity so fundamental that even the
proviso under section 83(1)(c) of the Criminal Procedure Ordinance cannot E
salvage.
87. Lastly, Mr McCoy raises the point that it is impossible to know
whether the jury had made legally valid findings of fact in relation to each
of the drugs seized, ie by a majority of at least five of their members, or if
they were impermissibly divided (R v Brown (Kevin) (1984) 79 Crim App F
R 115 (CA, Eng)). It calls into question the whole validity of the guilty
verdict. This and the other problems mentioned above could have been
avoided by splitting the one umbrella charge in this case (R v Courtie [1984]
AC 463 at pp 472G – 473F).
G
Discussion
88. I will begin my discussion on Ground 3 and Ground 4 with a brief

analysis of the prosecution case as at the time when all the evidence was
concluded, a good starting point of which would be the applicant’s video H
recorded interviews and various other oral and written admissions. By that,
I mean the extent to which the prosecution’s account of how some or all of
these confessions had come to be given may, or may not, have been gainsaid
by evidence.
89. Take, for example, the doctor who examined the applicant.78 Next to I
a ‘scratch’ on the chest, he had found a number of bruises of different sizes
over the applicant’s right arm and torso. Because of their colour, however,
78. See footnote 57.

[2019] 1 HKC (Pang JA) 207
A his evidence was that these bruises could ‘predate the date of the offence’
and although they could have been caused by fist blows, these bruises were
‘equally consistent with being caused by a fall to the floor in a struggle’.
Had the applicant been beaten as repeatedly as he claimed, that is, ‘60 times
on the chest and abdomen while static’, he said he (the doctor) ‘would have
B expected to have found deep bruising on the [applicant’s] body’.79
90. Of the same alleged assault in Room A, it is undisputed that the
applicant’s complaint to CAPO was inconsistent with what he said in court
at least insofar as it concerned the number of officers who attacked him.80
The difference is between a single officer called ‘Fo’ in the former, and two
C unnamed officers in the latter. Further, as was pointed out by the Deputy
Judge:81 ‘No police officer who was called to give evidence has been asked
if he had the nickname ‘Fo’ or if one nicknamed ‘Fo’ took part in the
operation.’
91. Just as the preceding matters are relevant to the question of possible
D police misconduct, the evidence of the applicant’s brother82 on the
applicant’s place of residence go to the parallel issue of truth and reliability
of the latter’s video recorded interviews. Of that evidence, it is interesting
to note what the prosecutor had said; they were remarks which defence
counsel had seen fit not to contradict in his final address:83
E
‘ The only matters, perhaps, to finish off with the brother, Mr Chau Yui-cham
…… was that the defendant was at home for four to five days, but remember,
the younger brother was away himself, after getting his so-called massage up in
China, so he would perhaps not be aware, particularly, of the comings and
goings of his elder brother, because, again -- to this extent, perhaps, the younger
F
brother was telling what was so obviously the truth, but -- or I think it was three
adults and two children, 300 square feet in Shatin was a very small amount of
space, and as he said himself, he was pretty keen to get away from there when
he could.’
The baseline of the brother’s evidence remains, of course, that the
G
applicant would spend only up to five days a week at home.84
92. Lest it be thought that, in my view, the prosecution case on the
confessions was above critical assessment, that is not so. It has not escaped
my attention that, in relation to the two Thai women who were intercepted
H outside Room A, there was sufficient reason to ask why, if they were
approaching as opposed to exiting the premises, the officers who
spearheaded the raid would have failed to see them, as was their evidence.85
There were other issues such as why, having volunteered his confessions,
79. Appeal Bundle, pp 31I – 32H; judge’s summing up.

I 80. Appeal Bundle, p 163K – P; prosecution’s closing speech.
81. Appeal Bundle, p 37B; judge’s summing up.
82. See footnote 54.
83. Appeal Bundle, p 165P – T; prosecution’s closing speech.
84. Appeal Bundle, p 35O; judge’s summing up.
85. Appeal Bundle, pp 168M – 169K; defence closing speech.
the applicant should make a complaint immediately before a magistrate and A

later to CAPO.86
93. The point is, these and many other matters which may be argued in
favour of either side are well within the experience of the courts in Hong
Kong. I cannot see and have certainly not been told that, for some reason,
the jury must have rejected the applicant’s confessions. Judging from the B
outcome of the trial, I would rather think the jury had at least taken some
of the out of court statements into account – unless one is content with the
proposition that they had based their conviction entirely on the remainder of
the evidence, which may or may not involve the impermissible approach
that Mr McCoy has mooted (see para 85 above). C
94. I prefaced the last-mentioned proposition with the word ‘unless’
because, for both the prosecution and the defence, their evidence on the
‘general’ and ‘narrow’ issues were interwoven. Each of these opposing
versions presented itself as one continuous and internally consistent account
over those two issues so that, if the confessions were rejected as being D
derived from police misconduct, it is difficult to see how the jury may have
accepted the officers’ assertion of finding the 1st batch of drugs and the
keys to Room A in the applicant’s bag. Conversely, if the jury believed the
officers to be telling the truth about the 1st batch of drugs and the keys, it
is not easy to think why they should have rejected their account of how the E
confessions were obtained. I am not saying it is logically impossible: just
difficult, speculative and highly unlikely; and if the jury did accept the
confessions and what was stated therein about the drugs’ ownership, there
could be no room for Mr McCoy’s moot situation to arise.
95. Having covered the applicant’s confessions, the most incriminating F
evidence arising out of which was his professed ownership of all the drugs
and professed residence at Room A, I turn to the rest of the prosecution
case. Again, unless they were disbelieved, the sum total of all the evidence
of the prosecution witnesses (including expert witnesses) would be as
follows: G
(a) The applicant had physical possession of the 1st batch of drugs and he was
on his way to convey it to another location.
(b) The applicant had physical possession of the keys to Room A and it was in
Room A that the 2nd batch of drugs was found, lying open and unconcealed. H
(c) The quantity and street value of both the 1st and 2nd batches of drugs were
substantial, the 2nd batch being larger and more valuable but consisting
essentially of the same drug as the 1st batch.
(d) When found, both inside the 2nd batch of drugs and lying next to it were I
some common drug trafficking paraphernalia, namely, a large number of small
empty plastic bags and one set of electronic scales.
86. Appeal Bundle, p 176M – 177E; defence closing speech.

[2019] 1 HKC (Pang JA) 209
A In the absence of any admission, these facts were prima facie capable of
giving rise to the inference of trafficking in respect of all the drugs seized.
96. In making that observation, I am not unaware of the possible
implications that this person, Wai Wai, may have on the prosecution case.
On the contrary, I have given that question much thought but am not in the
B end convinced that those implications were serious enough to have any real
impact. I say this because, in one view at least, Wai Wai was but a
one-woman brothel operator who dabbled in drugs and who had struck up
a relationship with a drug trafficker for a client.87 But if one recalls the
police evidence that her client, the applicant, had the keys to Room A and
C
was caught leaving those premises with a substantial amount of essentially
the same drug as the drug inside, the forcefulness of this view or case theory
is in fact fairly overwhelming. The suggestion that Wai Wai owned the 2nd
batch of drugs to the exclusion of the applicant is plainly unrealistic.
D 97. Thus completing my short review of the prosecution case as at the
relevant time, it surprises me that prosecuting counsel should adopt the
enigmatic position that he did. It was as if counsel wanted to undermine his
own case. In my judgment, taking into account all the circumstances, the
prosecution would have been justified to adhere to the One Charge
E Approach. There was nothing to oblige them to ‘responsibly’ change
positions, as McCoy puts it. I should also say that I do not see any objection
to including the ketamine in one umbrella charge. Admittedly small in
quantity, this drug was kept in the same bag as the bulk of the ‘ice’ which
was undoubtedly for trafficking, together with a large number of small
empty plastic bags. Perhaps it was the last packet in stock, perhaps it was
F
left there for Wai Wai by the applicant: but unless it is shown to be
intellectually impermissible to posit that this drug was also for trafficking,
there need not be any clear answer. If, in the event of a conviction, it is
pleaded that the ketamine was for self-consumption, it is no different from
pleading that part of the ‘ice’ was for self-use. It will not affect the charge
G
but it may go to mitigate the sentence, as happens daily in our courts.88
98. Once the correctness of the One Charge Approach is established, the
main basis of Mr McCoy’s complaint falls away. The latent duplicity point
will lose its bite and it would be up to the applicant to differentiate between
H the 1st and 2nd batches of drugs for plea and defence purposes, if he so
wished. If not, then short of pleading guilty, the applicant would have to
contest the trial as charged. It was not an easy situation for the defence but
there was no duty on the part of the prosecution to make it less so.
87. The applicant himself admitted in evidence that: for six months, he had visited Wai Wai ‘at least
I once a week’; he had frequently seen Wai Wai smoke ‘ice’ with the ‘ice’ pot
(cross-examination); he and Wai Wai would have chats ‘during the act’; and he had ‘quite
friendly feelings’ for Wai Wai (cross-examination). See Appeal Bundle, pp 208E, 218C, 232J
and 232O.
88. It is trite law that a charge of trafficking will stand even if part of the drugs involved was for
self-consumption.
99. The final question is, the jury having been exposed to the Conflicting A
Positions through counsel’s speeches, was the Deputy Judge wrong to give
the Corresponding Direction? With the falling away of the latent duplicity
argument, I should certainly think that no prejudice of the kind anticipated
had been incurred. That disposes of Mr McCoy’s major attack. Given the
likely acceptance of the more crucial admissions in the confessions by the B
jury (see paras 93 and 94 above), I should also think that the ‘Kevin Brown’
point would fail to get off the ground.89 The bottom line is, with the
Conflicting Positions still awaiting resolution, the Deputy Judge had gone
for expediency and came down with a direction that was entirely favourable
to the defence. C
100. As was pointed out by the Deputy Judge, the assertion that this was
an ‘all or nothing’ case is incorrect. To so describe the case would be to
confuse guilt with the degree of culpability, as in the exact amount of drugs
that one was trafficking (R v Peevey (1973) 57 Cr App R 554; Lo Kwong
Hing v R CACC 593/1979). Instead, what defence counsel ought to have D
done upon the prosecutor indicating his intention to advance a fallback
position was to address the court on the need then to accept partial verdicts,
in which case the applicant’s interest would be protected, properly.
101. As it is, no discussion of this kind ever took place. The Deputy
Judge adopted the ‘all or nothing’ approach and enjoined the jury not to E
convict unless they were sure of the applicant’s guilt in relation to all the
drugs in the charge. In other words, what the defence wanted, the defence
got from the court. I do not see how there can be any complaint at this stage.
Neither do I see the Corresponding Direction as encroaching on the
constitutional role of the jury. Unlike some of the classic cases, the Deputy F
Judge did not point to the evidence and direct the return of a certain verdict.
What he had done was almost like explaining to the jury what constituted
the offence. But whether I am right on this point, the question of the proviso
does not arise for consideration because again based on my earlier analysis,
it is clear the jury was satisfied that the applicant was the owner of all the G
drugs seized.
102. Ground 3 and Ground 4 are not made out.
GROUND 1
H
103. Ground 1 reads:90
‘ (a) The learned Deputy Judge wrongly exercised his discretion or
alternatively, failed to exercise any discretion at all, under s54(1)(f)(ii) Criminal
Procedure Ordinance (Cap 221), to permit the prosecutor to adduce before the
jury the entire and unedited criminal record of the Applicant which recorded 41 I
89. This is on the assumption that the ‘Kevin Brown’ point is a valid point to make in drug cases of
this kind. This is an issue which I see no need to discuss in this case.
90. Leading counsel relies on his written submissions and provides no oral supplement to this
ground.
[2019] 1 HKC (Pang JA) 211
A convictions between September 1986 to December 2012 for many different

offences (including for dangerous drugs) and which thereby deprived the
Applicant of a fair trial.
(b) Having permitted the previous convictions to be adduced, the Deputy Judge
failed, at the time of the Applicant’s cross-examination, to direct the jury as to
B the limited use to which those convictions could be made.’
104. Mr McCoy does not challenge the conclusion of the Deputy Judge
that the applicant had ‘lost his shield’. He stresses the importance of the
further and separate discretion as to which of the latter’s previous
C convictions should be adduced and criticises the Deputy Judge for
‘summarily’ ruling the ‘entire criminal record’ of the applicant admissible.
Spanning over some 20 years, this record consisted of 41 previous
convictions three of which were drug related (two for simple possession,
one for trafficking).
D 105. Mr McCoy acknowledges the admissibility of previous convictions
for identical and cognate offences (R v Burke (1985) 82 Cr App R 156; R
v Powell (1986) 82 Cr App R 165; R v Lok Kin Pui [1987] 1 HKC 179; R
v McLeod (1995) 1 Cr App R 591; HKSAR v Chan Hing Chi [1997] 4 HKC
75, [1998] 1 HKLRD 184) but argues that the Deputy Judge was wrong to
E have allowed the drug related convictions to go before the jury. He submits
that, for the limited purpose of exposing the applicant’s character and
undermining his credibility, the applicant’s previous convictions for
dishonesty would have amply sufficed.
106. It is further argued that the stale and trivial past convictions should
F have been disallowed because first, these convictions are more likely to be
prejudicial than probative and second, the sheer number of the applicant’s
past convictions would otherwise ‘swamp the limited value’ of their use.
107. Finally, the Deputy Judge is criticised for not warning the jury of
the limited value of these past convictions at the time of the applicant’s
G cross-examination. By leaving it until his summing up, the Deputy Judge
had allowed these convictions to weigh impermissibly on the minds of the
jurors for much longer than was necessary.
Discussion
H
108. The application to invoke section 54(1)(f)(ii) was indeed swiftly
granted.91 But the prosecution had never got beyond putting to the applicant
that he had ‘a history of drug taking’92 when the cross-examination was
broken by a lunch adjournment after which the defence renewed their
I
objection particularly as regards the drug related convictions.93 More
importantly, when faced with defence counsel’s accusation, namely ‘you
91. Appeal Bundle, p 137.

92. Appeal Bundle, p 140D – G.
93. Appeal Bundle, pp 145 – 156.
very quickly acceded to [the prosecution’s application] without even A

looking at what the previous convictions are’, the Deputy Judge refuted
them instantly by saying, ‘You must have expected the application that
they’re making,’ and ‘I have [looked at the applicant’s previous
convictions], they are in my fold.’94 Towards the end of the additional
arguments, it was further stated by the Deputy Judge that:95 B
‘ I know your position, I am fully aware of your position, I am fully aware I

have the discretion, I am fully aware of the authorities, because I have read
what you’ve put before me. I’ve also read Hong Kong Archbold and the English
Archbold before this application was made, because I anticipated it would be
C
made, and I am perfectly satisfied this is a fit and proper case for me to commit
the prosecution to place before the jury, by way of cross-examination of the
defendant, his previous convictions.’
I do not think it can fairly be said that the Deputy Judge had acted
summarily against the applicant’s interest. D
109. In terms of merits, the Deputy Judge was right that ‘the whole of the
defence case [was one of] criminal conspiracy by the police to pervert the
course of justice’,96 whose detailed allegation went full range from the
fabrication of evidence to the use of threats, inducements and a considerable
amount of physical violence. That being the case, but also because Wai E
Wai’s drug taking and dealing had been made matters of agreed fact which
the defence relied on for their obvious implications, I am satisfied that the
full spectrum of the applicant’s criminal record could fairly be put before
the jury – except for his one conviction for trafficking which, in any event,
the prosecutor had offered not to raise in cross-examination.97 F
110. When finally executed, the cross-examination was restrained and
even-handed:98
‘ Q. All right. Let me put to you directly. I was perhaps going to see if we could
do it in some other way, but let’s put it to you directly. You have been in trouble G
with the police on numerous occasions involving dishonesty. Do you agree?
A. Yes.
Q. You were before the court back in 1986 for a robbery and resisting arrest of
the police arising from the same robbery.
H
A. Yes.
Q. 1988, for theft, when you got a suspended prison sentence.
A. Yes.
I
94. Appeal Bundle, p 145L – O.
95. Appeal Bundle, p 152Q – T.
96. Appeal Bundle, p 137L.
97. Appeal Bundle, pp 151T, 152U and 154N.
98. Appeal Bundle, pp 239K – 240E.
[2019] 1 HKC (Pang JA) 213
A Q. 1990 and 1991, again, for further offences of theft.

A. Yes.
Q. 1993, further offence -- occasions involving two thefts.
B A. Yes.
Q. I’m sorry, that was in April of 1993. You were back for another theft in May
of 1993.
A. Yes.
C Q. And again in June of 1993, for using false instruments, another offence of
dishonesty, and possession of a false instrument.
A. Yes.
Q. 1996, for going equipped for stealing, another offence of dishonesty.
D
A. Yes.
Q. 2003, for no fewer than six offences involving burglaries, again, and
offences of dishonesty.
E A. Yes.
Q. In 2005, for yet another offence of burglary.
A. Yes.
Q. More thefts in -- in 2012 and other -- and using a vehicle with forged
F
identification mark. Again, offences of dishonesty in 2012.
A. Yes.
Q. You admitted to the police that you had consumed drugs that day because
you had -- I suggest, because you had a drug habit. Do you agree or disagree?
G
A. Disagree.
Q. Do you agree you have in the past been convicted of possessing drugs?
A. Yes.’
H
111. Given that and the Deputy Judge’s ‘strong’ and ‘correct’ directions
on the subject (Mr McCoy’s own words), I do not see any cause for any
complaint. I am not persuaded that the Deputy Judge should have given the
jury a contemporaneous warning, at least not in the circumstances of the
I present case.
112. There is no merit in Ground 1 and it must fail. A
GROUND 2
113. This ground is self-explanatory:99
B
‘ The learned Deputy Judge permitted the jury to take into account against the
Applicant his right to silence, by validating that part of the prosecutor’s
questions emphatically asked in cross-examination, as to why the Applicant had
failed to volunteer an innocent explanation to the Police when questioned after
having been arrested and cautioned.’
C
114. Below is the section of cross-examination which leading counsel
says is problematic:100
‘ Q. And the only person living in Room A at that time was Wai Wai.
A. Yes. D
Q. You see, help us about this. If those things are all correct, which I think you
say they are, when the police say ‘To whom do these drugs belong?’ Why not
say, ‘Well, not me, it must belong to Wai Wai’?
A. Well, it was not mine, but I had no idea whether it belonged to Wai Wai or
not? E
Q. Who else could they belong to?

A. I have no idea.
Q. But surely, it must have gone through your mind. They are not yours, you’ve F
never seen them, you never had anything to do with them, and they are found
at the flat, they’ve got to belong to Wai Wai.
A. No idea.
Q. And a further clue to that is to be found in what you knew to be the ‘Ice’ pot.
Is that right? Let’s look at photograph 14, and you’re welcome, of course, to G
have it. And can we have the ‘Ice’ pot, please? If you need to look at it, again,
it’s in this bag. 12, I am sorry, I believe it’s P12. Now, you tell your own counsel
that you had seen Wai Wai smoking from that pot, is that right?
A. Yes.’
H
115. Next, we have the impugned passage of summing up:101
‘ Mr Laskey posed several rhetorical questions to you on Friday and there are
one or two I would like to go through and deal with. Why did the defendant go
to Sham Shui Po for sexual services? He said he found Wai Wai on a I
99. Leading counsel relies on his written submissions and provides no oral supplement to this
ground.
100. Appeal Bundle, pp 143R – 144F.
101. Appeal Bundle, pp 34P – 35D.
[2019] 1 HKC (Pang JA) 215
A pornographic site. Mr Laskey said, well, if he was just going there to see a
prostitute, why go to all the trouble of going over to Sham Shui Po, there must
be prostitutes in Yuen Long and Sha Tin. The defendant must have known that
Wai Wai was an ‘Ice’ user because he said in cross-examination that he has seen
the ‘Ice’ pot in Room A on every visit to Wai Wai and that he had seen Wai Wai
B and her friends use it. Mr Laskey posed the rhetorical question why, when he
was asked about the dangerous drugs back at Unit A, why did he not say
something like ‘It’s not mine, it must be Wai Wai’s. I’ve seen her use the drugs
in this flat before’.’
116. For general principles, Mr McCoy relies on Lee Fuk Hing v HKSAR
C (2004) 7 HKCFAR 600, [2004] HKCU 1476 and ‘subsequent cases’.
Discussion
117. I set out below eight more questions and answers which
immediately preceded the section of cross-examination that has been quoted
D
in para 114:102
‘ Q. Right. And when questioned, which again, we’ll come to a little later, you
were at pains to tell the police that these drugs were yours and not Wai Wai’s.
Now, firstly, do you agree that you said something like that?
E
A. After I -- when I’ve suffered severe injury after the severe beating, I said
that.
Q. Now, just suppose, for the moment, that you have been beaten up, which I
do -- the prosecution do not accept, but suppose that you are right about that.
F Why then say that it’s got nothing to do with Wai Wai?
A. You mean inside Room A?
Q. Wherever, be it in room A or either of the police stations.
A. The police officers coached me to say that.
G
Q. So they are telling you to say that it’s got nothing to do with Wai Wai. Is that
-- it doesn’t come from you personally, it comes from them telling you, is that
your evidence?
A. That’s correct.
H
Q. And yet it’s your case that you want the jury to accept that these drugs do
not belong to you at all, and you had nothing whatever to do with them, correct?
A. It’s -- in reality, it has nothing to do with me.
I Q. Yes. You want the jury to accept your account that these drugs had nothing
whatever to do with you.
A. Yes.
102. Appeal Bundle, p 143F – Q.

Q. You had never seen the packets of drugs before the police found them on the A
night of 17 March.
A. That’s right.
Q. But you accept that the police found the drugs, the packets, which turned out
to be drugs in the premises at Room A. You accept that, don’t you?
B
A. Yes.’
118. Reading the two sections together, it seems obvious that all the
prosecutor was doing was to tax the applicant on the illogicality of his
account of how he came to provide the answer which he did not deny
eventually providing, namely ‘the drugs are mine’. Of course, the applicant C
claimed he was brutally treated, but that begs the question as to why he had
never protested that the drugs may belong to Wai Wai, then knowing for a
fact that Wai Wai was a drug user. That, clearly, was the point counsel was
making. It had nothing to do with infringing the applicant’s right to silence.
Likewise, when the Deputy Judge referred to the ‘rhetorical question’ posed D
by the prosecution, he was simply repeating counsel’s submissions. I do not
think the jury could have understood it in any other way. In the final
analysis, the defence case was one and the same for both the ‘narrow’ and
‘general issue’. The prosecution was entitled to attack it by showing where
and why it did not make sense. Ground 2 also fails. E
THE APPEAL AGAINST SENTENCE

119. It is submitted that, even if the appeal against conviction should fail,
it remains a fact that the prosecution case was much stronger in relation to
the 1st batch of drugs so that the only safe basis for sentencing was in F
relation to that lesser quantity of drugs and no more.
120. I do not think that is a tenable argument. I have stated why, in my
view, the jury must have found the applicant to be in possession of the 2nd
batch of drugs as well so, given its considerable quantity and value, there
G
was ample justification for sentencing the applicant on the basis that he was
trafficking in all the drugs seized.
121. In my judgment, the applicant’s application for leave to appeal
against sentence must also be refused and the appeal dismissed.
Macrae VP: H
122. The application for leave to appeal against conviction is, by a

majority, refused and the appeal dismissed. The application for leave to
appeal against sentence is also refused and the appeal likewise dismissed.
I
Reported by Lindy Course

HKSAR V CHAU YUI MING - (2019) 1 HKC 179

Uploaded by

Copyright:

Available Formats

HKSAR V CHAU YUI MING - (2019) 1 HKC 179

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

HKSAR V CHAU YUI MING - (2019) 1 HKC 179

Uploaded by

Copyright:

Available Formats

[2019] 1 HKC 179

A HKSAR v CHAU YUI MING

Held, by a majority (McWalters JA dissenting) refusing leave to appeal

Application for leave to appeal

his position and defence counsel adhering to his. A

D 14. To this statement of what the judge proposed to say in his

9. Ho Hoi Shing v HKSAR [2008] 5 HKC 57, (2008) 11 HKCFAR 354.

16. Montgomery v HM Advocate [2003] 1 AC 641.

of the sentences they are likely to receive under various sentencing A

A would not have faithfully followed that direction.

27. See AB 175A-N; 178B-I.

28. See AB 175P-T; 178J-N.

A As an evidential alternative it was always a possibility that could arise if the

their right to return these alternative verdicts. This is so even if the A

33. Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at 362C-E.

A choice. As was said by Callinan J in Gilbert v R:34

‘ It is contrary to human experience that in situations in which a choice of

‘ It is impossible to speculate how the jury arrived at their verdict, especially

THE PROSECUTION CASE

39. Appeal Bundle, p 195; photo 14.

57. Appeal Bundle, p 41A – F; judge’s summing up.

A 54(1)(f)(ii) of the Criminal Procedure Ordinance and it was revealed that he

‘ …… theft, burglary, what is known as possessing false instruments …… a

59. Appeal Bundle, pp 19S – 20E; judge’s summing up.

THE JUDGE’S DIRECTION

70. Appeal Bundle, p 177F – S; defence closing speech.

Grounds of Appeal against Conviction (see later), the interlocking issues of A

73. Appeal Bundle, pp 25F – Q; judge’s summing up.

A MR LASKEY: Is the safest.

I COURT: Well, there we are.

MR LASKEY: I’m sorry, my Lord? A

THE APPEAL AGAINST CONVICTION

reaching different verdicts. That notwithstanding, the prosecutor went on to A

88. I will begin my discussion on Ground 3 and Ground 4 with a brief

78. See footnote 57.

79. Appeal Bundle, pp 31I – 32H; judge’s summing up.

the applicant should make a complaint immediately before a magistrate and A

86. Appeal Bundle, p 176M – 177E; defence closing speech.

A convictions between September 1986 to December 2012 for many different

91. Appeal Bundle, p 137.

very quickly acceded to [the prosecution’s application] without even A

‘ I know your position, I am fully aware of your position, I am fully aware I

A Q. 1990 and 1991, again, for further offences of theft.

112. There is no merit in Ground 1 and it must fail. A

Q. Who else could they belong to?

102. Appeal Bundle, p 143F – Q.

THE APPEAL AGAINST SENTENCE

122. The application for leave to appeal against conviction is, by a

You might also like