FACC 2/2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 2 OF 2019 (CRIMINAL)
(On appeal from CACC No. 441 of 2015)

BETWEEN

HKSAR Respondent

and

CHAU YUI MING Appellant

Respondent’s Printed Case

(Date of Hearing: 15 October 2019)

Overview

This case involves the important charging approach of a

common situation in which a first batch of dangerous drugs was found
on an accused (on his body or bag which he was carrying) and a
subsequent discovery of a second batch of dangerous drugs at a
premises related to the accused (either he/she came out of the premises,
or being a tenant/ occupier of or having keys to the premises).

2. There is no hard and fast rule governing (1) laying one single
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charge covering the two batches of dangerous drugs (as in the present
case) or (2) laying two counts of trafficking, one for each batch of
dangerous drugs. The choice depends on the available evidence and
the circumstances under which the accused commits the offence.

3. The overriding test is one of fair trial to the accused. Despite

the right to fair trial being an absolute right, it does not impose a duty
on the prosecution to amend the indictment to suit any defence(s)
possibly raised in the trial. Likewise, whether the Judge should direct
the jury that it was a “all or nothing case” depends on the evidence
adduced at trial.

The present case

4. In the present case, the Appellant was seen leaving a flat. Two
packets of 22.6 g of Ice was found in a sling bag (first batch) which he
was carrying. Inside the flat, 10 packets of 63.1 g of Ice, one packet of
2.08 g of ketamine (second batch), many small resealable plastic bags, a
pair of electronic scales and an Ice pot were found immediately after
his arrest. A key to the premises was found in his sling bag. A
woman Wai Wai, the tenant of the premises who is a drug trafficker and
abuser, was found inside the flat. It was never disputed that Wai Wai
was known to the Appellant.

5. In view of the close proximity of time and space, the Appellant

was charged with one count of trafficking in all dangerous drugs. He
was convicted by a majority verdict of 6 to 1 and was sentenced to ten
years’ imprisonment.

6. The Appellant’s appeal to the Court of Appeal was dismissed

by a majority. Leave to appeal to the Court of Final Appeal was
granted on both limbs. The two certified questions of law were:

(a)Whether on a single count of trafficking in dangerous drugs which

involves different quantities and types of drugs, and where there is
evidence to support a number of possible defence scenarios in trial (i.e.
primary and secondary strategy), the prosecution should have applied
to amend the indictment to allow for alternative counts of unlawful
 -3-

trafficking in dangerous drugs for the different defence scenarios?

(b)If the answer to (a) is no, then whether the court should direct the
jury that it was an “all or nothing case” thereby depriving the jury of
other verdicts which could be open to a defendant?

Prosecution case1

7. The prosecution case was that the Appellant was intercepted

upon leaving a flat, namely Room A on the mezzanine floor of the
premises in Fuk Wing Street, Sham Shui Po (‘the Room”). When the
Appellant attempted to retreat back into the Room, a struggle ensued
between him and the police and he was eventually subdued. Upon
search, two packets containing 22.6 grammes of Ice (“the 1st Batch”)
together with a set of working keys to the Room and cash of HKD
29,440 were found in the sling bag (“the Sling Bag”) which was carried
across the chest of the Appellant. Under caution upon arrest, the
Appellant said, “Ah Sir, I got the dangerous drug “Ice” for my own
consumption. It was to be given to my friends.”

8. One of the police officers entered the bedroom of the Room and
found a woman, Wai Wai who was subsequently known to be the
tenant of the Room. A search was conducted in the bedroom
thereafter. 10 packets containing a total of 63.1 grammes of Ice and
one packet containing 2.08 grammes of ketamine (collectively as “the
2nd Batch”), together with many small resealable transparent plastic
bags, were found inside a black bag (“the Black Bag”) on the makeshift
bedside table in the bedroom. A pair of electronic scales and an Ice
pot were also found on the same table. Under further caution, the
Appellant said, “Ah Sir, the dangerous drug “Ice” belongs to me. It has
nothing to do with my girlfriend.”

9. In the subsequent cautioned video-recorded interviews, the

Appellant, inter alia, said:-
1 The Judgment: paragraphs 65-70 and 79-80 [A/2/61-66; 75-76].
 -4-

(1) He bought all the drugs in question a few hours before the
arrest for his own consumption. The drugs also included
a quantity which he purchased on behalf of his friend;
(2) He took all the drugs to Wai Wai’s place which was also
his residence;
(3) He consumed some of the drugs using the Ice pot and
saved the remainder in the Black Bag;
(4) Wai Wai was a Thai sex worker whom he had patronized
for some months. She was chatting with two unknown
ladies when he returned to the Room;
(5) He was jobless but won a soccer bet. It explained why he
had a large amount of money in the Sling Bag and he
could afford to purchase the drugs in bulk;
(6) The small bags inside the Black Bag were for him “to
separate and consume ice” and the electronic scales were for
checking his purchase and to separate his own share of
drugs; and
(7) When asked why the quantity and the packaging of the 1st
and 2nd Batches of drugs were different, he answered that
he “had separated them too”.

10. As aptly pointed out by Macrae VP in the Judgment,

“the prosecution case was 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).”2

Defence case3

11. The Appellant testified at trial that he was never in possession

2
Paragraph 3, [A/2/37].
3
The Judgment: paragraphs 72-75 [A/2/66-70].
 -5-

of either the 1st or 2nd Batches of drugs. His case, in essence, was that
he was framed up by the police. In relation to the admissions made
under caution, the Appellant asserted that such admissions were either
never said or were involuntarily made. 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 all along that he never had possession of either.
It is important to note that during the trial, he never claimed that he had
purchased the 1st Batch from Wai Wai, as suggested in paragraph 13 of
the Case for the Appellant.

Closing addresses of counsel and the Judge’s direction

12. During the discussion between the Judge and counsel after the
defence case was closed but before the closing addresses of counsel, the
prosecutor raised the concern that the jury might take the view that the
Appellant’s admission of possession of the 2nd Batch of drugs in the
Room was to protect the woman, Wai Wai and accordingly the jury
might be satisfied that the Appellant had the 1st Batch of drugs in the
Sling Bag for trafficking, but not the 2nd Batch. The prosecutor did not,
as suggested in paragraph 15 of the Case for the Appellant, apply for
severing the single count into two to cover the 1st and 2nd Batches.
Instead, the prosecutor advanced 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.”4

13. Notably, defence counsel made no application to have the

single count split and he just made clear to both the Judge and the
prosecutor that the position adopted by the prosecution was “directly
contrary to what my submissions are going to be to the jury.”5

4 Transcript of the proceedings on 11 December 2015, p.278Kand the Judgment: paragraph 7

[A/2/38].
5
Transcript of the proceedings on 11 December 2015, p.278N and the Judgment: paragraph 8
[A/2/38-39].
 -6-

14. The prosecutor addressed to the jury in his closing address as

follows:

“ 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 he is facing.” (emphasis
added)6

15. Defence counsel, however, said this in his closing address:

“… 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 dangerous drugs in the flat…

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 is all or nothing…”(emphasis added)7

16. Having considered the issue, the Judge made the following
remarks to both counsel during the discussion before his summing-up:

“…although I don’t quite agree with Mr. Donald, I think the safest
course of action given the state of evidence and the way the
prosecution has chosen to bring the case, that this is pretty much an
all or nothing case.
…..
It will be very dangerous, I think, to start putting alternative

66
Closing speech of the prosecution, p.160H-1 and the Judgment: paragraph 9 [A/2/39].
7
Closing speech of defence counsel, p.177I-S and the Judgment: paragraphs 10 and 74 [A/2/39-40;
69-70].
 -7-

scenarios to the jury when the case is being brought by the prosecution
on the basis that all the drugs belong to the defendant.”(emphasis
added)8

17. The Judge then summed up to the jury on the said basis:

“ In his closing speech on Friday, Mr. Donald said this is a case of

all or nothing. If you to come 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.

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 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 trial.” (emphasis added)9

Appeal to the Court of Appeal

18. On appeal before the Court of Appeal, four grounds of appeal

against conviction and one ground of appeal against sentence were
advanced. All the grounds of appeal were rejected by a majority.
Insofar as this appeal is concerned, only Grounds 3 and 4 of appeal
against conviction are relevant.

8 Transcript of proceedings on 15 December 2015, p.280E-J and the Judgment: paragraph 13 [A/2/41].
9
Transcript of summing up [A/1/14F-P] and the Judgment: paragraphs 15 and 76 [A/2/41-42; 71].
 -8-

19. In essence, Ground 3 alleged that the Judge failed to correct, in

his summing up, a misstatement of law of the prosecutor in his closing
address that a proper verdict of guilty in relation to the all the drugs in
the Black Bag could be returned if the jury was satisfied only with
regard to the drugs in the Sling Bag, which allowed the jury to
improperly convict the Appellant on the charge he faced. Ground 4
alleged that the Judge failed to direct the jury properly on the distinct
and different quantities and types of drugs found in both the Sling Bag
and the Black Bag. 10

20. The reasoning of the majority decision11 which Grounds 3 and

4 must fail is premised on the evidence and live issues at trial. While
the prosecution case was throughout the trial that the Appellant was
trafficking in all of the drugs seized, the defence case was that the
Appellant was in possession of none. It is clear that the possession of
the Appellant of only the drugs in the Sling Bag had never been a live
issue at trial. Taking into account the prosecution case, the prosecutor
was entitled to adhere to the “one-charge” approach. It was up to the
defence to differentiate between the 1st and 2nd Batches for plea and
defence purposes. As regards the complaint that the ketamine should
not be included in the single count, the fact that it was kept in the Black
Bag together with the bulk of the Ice supports the inference that it was
for the purpose of trafficking. Even if it might have been or it was
pleaded that the ketamine was for the Appellant’s own consumption, it
would not affect the basis of conviction on a charge of trafficking and
the issue of self-consumption (if raised and accepted) only goes to
mitigation. The approach of “all or nothing” was sought by the
defence in the trial which is entirely favourable to the Appellant. The
jury were given a very simple direction and the appellate court must
proceed on the premise that the jury would have faithfully followed the
Judge’s instruction, namely that he could only be convicted if they were
satisfied that the Appellant was the owner of all the drugs seized.

10
The Judgment: paragraph 81 [A/2/76].
11
The Judgment: paragraphs 3-37 and 88-102 [A/2/37-52; 79-87].
 -9-

21. McWalters JA, in his dissenting judgment 12 , concluded that

there was a sufficient evidential basis for the legal principles of Ho Hoi
Shing v HKSAR (2008) 11 HKCFAR 354 to apply in the present case and
the Judge had to direct the jury that they could return a verdict of guilty
only confined to the drugs in the Sling Bag. To place such alternative
verdict to the jury, the Judge should have amended the indictment by
laying an alternative count covering only the drugs in the Sling Bag.
While the Judge’s “all or nothing” direction was on its face favourable
to the Appellant, it was likely to confuse the jury and tempt them into
over-convicting the Appellant. McWalters JA was of the view that this
was not a suitable case for the proviso and therefore quashed the
Appellant’s conviction and ordered a retrial.

The Respondent’s submissions

The issue in this appeal

22. The ultimate issue in this appeal is how charge(s) of trafficking

in dangerous drug(s) should be framed when factual matrix of a case
concerns a batch of drugs being found on a defendant‘s person (either
on his body or in a bag carried by him/her) and a subsequent discovery
of another batch of drugs at a premises related to the defendant (either
he/she was leaving from or entering the premises, or being a tenant/
occupier of or having keys to the premises).

23. There is scarcely any hard and fast rule governing whether the
indictment should include only one charge covering both batches or
separate charges covering different batches of drugs. The choice of
how the charge(s) are framed is highly fact-sensitive. Factors to be
considered include, but are not limited to, (i) the respective weight of
the two batches of drugs; (ii) the types of the drugs in the two batches,

12 The Judgment: paragraph 38-63 [A/2/52-61].

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(iii) the respective mode and weight of individual packaging in the two
batches; (iv) the location where the two batches were discovered; (v) the
cautioned admissions of the defendant about his connection, if any,
with one or both batches of drugs; and (vi) the background of the
defendant known to the prosecution, including his/her previous drug
related conviction(s) of trafficking/possession of dangerous drug(s) , if
any, and if so, the type(s) of drug(s) involved.

Questions of law
Question (a)

24. It is within the prerogative of the prosecution to decide what

charge(s) to lay, the particulars thereof and how best to conduct the
prosecution case. The prosecution is entitled to adhere to the charge(s)
they have laid, particularly when there is strong evidence justifying the
charging approach. As expressed by Lord Ackner in R v Maxwell
(1990) 91 Cr App R (HL) at p.65:

“… It is the responsibility of the prosecution to frame the charge they

think appropriate. At the end of the extensive evidence which the
prosecution called to justify the charge, it seems to me that they were
entitled validly to submit that they had established a strong prima
facie case of robbery, and that the jury should not be distracted from
concentrating upon the ingredients of that offence by the introduction
into the trial of the lesser offence, which was inappropriate in their
view on facts which they had already established…”

25. It is trite that the defence, once an indictment has been filed,
can at any stage of the proceedings make such applications as it thinks
fit, such as requesting to have the indictment split or further and better
particulars of the indictment. The Appellant was legally represented
throughout the trial. No such application/request was ever made by
the defence. Given the adversarial system of our criminal proceedings,
it is untenable to suggest that the prosecution is obliged to consider
 - 11 -

what defence(s) would be put forward and to amend an indictment to

suit all possible defence(s). Pang JA rightly pointed out in the
Judgment, at paragraph 9813:

“… it would be up to the applicant to differentiate between 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.”
(emphasis added)

26. There is no dispute that a defendant has an absolute right to a

fair trial in which he should only be convicted of offence(s) which
he/she is proven to have committed. The trial judge has the ultimate
responsibility of ensuring that a defendant is not denied a fair trial: R v
Coutts [2007] 1 Cr App R 6, [2006] UKHL 39, at paragraph 12, per Lord
Mance. In the present case, the Judge, as pointed out by Hon Macrae
VP, gave very favourable direction to the Appellant which was sought
by the Defence Counsel. There is no unfairness to the Appellant being
charged with one count of trafficking in all of the drugs. Neither was
there any prejudice caused since the defence was all along the same,
that is, he was not in possession of any of the drugs14.

27. There can be no doubt that the rule of duplicity prohibits a

prosecutor from charging in one count of an indictment for two or more
offences provided by the law. The Respondent agrees that the legal
principles summarized by Cheung JA in HKSAR v Ho Man Ho [2012] 1
HKLRD 188, at paragraphs 8-9 (cited in the Case for the Appellant, at
paragraph 18) represent the correct position of the law.

28. The issue of whether a charge is duplicitous hinges upon the

evidence adduced by the prosecution to prove the facts and

13 [A/2/85].
14
[A/3/99]
 - 12 -

circumstances under which the criminal act was committed by the

defendant, instead of the lines of defence which were or would be
adopted by a defendant. It is well-settled that where a defendant has
committed similar acts which are connected in time and place or by
their common purpose, which can be viewed as forming part of the
same criminal activity, it is open and proper for the prosecution to
charge them in a single count: Ho Man Ho, at paragraph 15, per Cheung
JA and DPP v Merriman [1973] AC 584 (HL), at p.607C-D, per Lord
Diplock.

29. Helpful guidance on the application of the principles to drug

trafficking offences can be found in Green v Western Australia (No.2)
(2014) 240 A Crim R 73, [2014] WASCA 53, in which the appellant was
convicted after trial of one count of possessing a prohibited drug with
intent to sell or supply. The relevant charge involved two batches of
drugs found in close proximity. The appellant elected to give
evidence at trial. While he admitted the possession of the batch of the
lesser quantity, he denied the possession of the batch of the much larger
one. In rejecting the argument that the single count was duplicitous,
McLure P said, at paragraphs 31-31:

“… The fact that there could have been separate counts does not mean
that a single charge particularized as relating to the full amount of the
same type of prohibited drug in the defendant’s possession at the same
time with the same intention gives rise to latent duplicity. If there
is no factual duplicity in the prosecution case, it cannot be created by
the manner in which an accused chooses to defend the charge.

Even if the prosecution’s factual case was based on more than one
offence, the circumstances relied on by the prosecution were so close
in time, place and nature that they can only properly be viewed as one
composite activity so as to come within the exception to the rule
against duplicity.” (emphasis added)

30. In granting the certificate to this appeal, Macrae VP made

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references to three recent cases, namely HKSAR v Yeung Chun Hin [2018]
5 HKLRD 412, [2018] HKCA 712, HKSAR v Tsang Sin Yi CACC 233/2016
(unreported), and HKSAR v Mushtaq Zeeshan CACC 223/2014
(unreported). 15 As observed by His Lordship, while each of the
applicants of the three cases was involved in one batch of drugs found
on him/her and another batch of drugs found in his/her premises, the
applicants of the first two cases were each charged with one single
count of trafficking and the applicant of the last case was charged with
two counts of the offence.

31. Although no issue was taken in the charging approach in the

said three cases, they served as very good examples of how the
exception to the rule of duplicity comes into play in framing charges for
drug trafficking offences.

32. In Yeung Chung Hin, the applicant was intercepted when he was
leaving his home. Upon search, two bags of Ice were found in the cuff
of the applicant’s sock. Keys to the main gate, main door and one of
the bedrooms of his home were also found on him. As for the house
search, a total of eight bags of Ice and five foil packs containing
midazolam together with drug packaging paraphernalia were found in
a bedroom of the applicant’s home. The applicant admitted under
caution that the two bags of Ice found on him were for his own
consumption. He also admitted under caution possession of the
dangerous drugs found in the bedroom and the key to the bedroom
where the dangerous drugs were found. As remarked by Macrae VP,
who was also involved in that case, “it was the prosecution’s case, based on
circumstantial evidence, that the applicant was a drug dealer, who had stashed
dangerous drugs at his home, from which he was leaving at the time of arrest
in order to make a delivery of dangerous drugs.” 16 The single count
covering both batches of drugs against the applicant was fully justified
on the basis of the evidence adduced in the prosecution case, inter alia,
the close proximity of the drugs being found.

15 The Certificate Judgment: paragraphs 5 and 8 [A/3/100].

16
At paragraph 9.
 - 14 -

33. In Tsang Sin Yin, the applicant was also intercepted when she
was leaving a flat. Upon search, five packets of Ice were found in the
backpack of the applicant together with the two keys which could open
the locks of the main door and the metal gate of the flat. A subsequent
house search resulted in the seizure of more than 70 bags of Ice, 21 bags
of cocaine and tablets of other dangerous drugs. The applicant
admitted under caution that she was employed by a person to take care
of the flat, and deliver the dangerous drugs and collect money. The
prosecution case of Tsang Sin Yin was factually similar to Yeung Chun
Hin, to the extent that she was also in charge of the drugs stashed in the
premises and she was delivering part of the stock of dangerous drugs
in the premises when she was arrested. The factual matrix and the
evidence (close proximity of drugs being found) adduced in Tsang fully
justified the laying of one charge (a series of acts forming part of the
same criminal activity) against the applicant.

34. In Mushtaq Zeeshan, the applicant was intercepted when he was

returning to a premises. Upon search, a resealable plastic bag
containing three packets of cocaine and two mobile phones were found
on him. Upon further search, a large quantity of cocaine
hydrochloride and a small quantity of cocaine, together with other
packaging paraphernalia were found in a bedroom of the premises.
Unlike the two cases above, the facts and circumstances in the
prosecution case did not indicate that the applicant was delivering part
of the stock stored in the premises. For that apparent reason, the
prosecution rightly and properly laid two counts of trafficking in
dangerous drugs, instead of one.

35. Applying the same charging principle of the aforesaid

authorities to the present case, it was entirely proper for the prosecution
to include both batches of drugs in the same count and there was no
issue of duplicity. The crux of the prosecution case was that the
Appellant had the physical possession of the 1st Batch of drugs upon
leaving the Room with a substantial amount of cash and the keys to the
 - 15 -

Room while the 2nd Batch of drugs which were much larger in quantities
but consisted essentially of the same drug together with drug
packaging paraphernalia were found in the same premises. Under
caution, the Appellant made unequivocal admission on possession of
both batches. It is clear from the evidence that the prosecution had a
cogent case that the Appellant was in possession of all the drugs
involved for the purposes of trafficking while delivering part of the
stock from the premises. The possession of both batches of drugs
was clearly connected in time and place and by their common purpose
such that they could be fairly viewed as forming part of the same
criminal activity.

36. The Appellant’s argument that the two batches of drugs cannot
be fairly regarded as forming the same “transaction” essentially rests
on the distinction of the physical possession of the 1st Batch on the
person of the Appellant (being referred as actual possession) and the
2nd Batch in the Room (being referred as constructive possession). It is,
respectfully submitted that the single count of trafficking in the present
case should not be rendered as duplicitous by merely focusing on such
technical and artificial distinction in possession. In considering
whether the rule of duplicity is infringed, it is of paramount importance
to apply common sense and consider what is fair in light of the
circumstances of each case: Merriman, at p.593C per Lord Morris. The
facts and circumstances in the present case (ie the close proximity of the
drugs being found and the unequivocal admission made by the
Appellant) clearly support the laying of one single act of trafficking to
reflect the same criminal activity engaged by the Appellant.

37. The Appellant also argues that the problem of duplicity arose
from the inclusion of the ketamine in the single count. The argument
is essentially premised on the basis that (a) the offence of trafficking in
ketamine is a different and lesser offence than that of trafficking in Ice
and (b) no inference of trafficking could be drawn for the ketamine
involved given its small quantity.
 - 16 -

38. As to (a), it is submitted that the issue only concerned the

degree of culpability and does not affect the propriety of the charge. It
is noteworthy that different sentencing approaches (individual and
combined) are well established by Hong Kong courts to produce fair
sentences for drug traffickers involving more than one type of drugs:
see HKSAR v Leung Chun Pong [2009] 6 HKC 272 (CA) and HKSAR v
Wong Kin Kau [2010] 4 HKC 443 (CA); HKSAR v Ko Ka Hing [2009] 4
HKLRD 856 (CA); and HKSAR v Wan Lau Mei CACC 389/2013
(unreported).

39. As to (b), it must be pointed out that the undisputed evidence

that the ketamine, despite its small quantity, was found together with
the large quantity of Ice and a large number of empty resealable plastic
bags in the Black Bag serves as a strong basis for the inference of
trafficking to be drawn. It is not uncommon that a drug trafficker
may deal in more than one kind of drugs for better financial gain in a
wider market. “…the presence of more than one type of drug in a drug
trafficking offence is an aggravating factor because in such a situation the
trafficker is able to cater to a wider market than the trafficker in only one kind
of drug”: HKSAR v Yim Hung Lui Ricky CACC 266/2011 (unreported), at
paragraph 11, per Cheung JA. See also Wan Lau Mei, at paragraph 40,
per Stock VP (as he then was).

40. In any event, even if the jury were satisfied that the ketamine
was or might be possessed for the purpose of self-consumption, it
would not affect the basis of conviction. As Stuart-Moore VP (as he
then was) said in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69,
at paragraph 29:

“ 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 the defendant for the purposes of trafficking, this will be
a sufficient basis for finding a guilt on the charge of trafficking, even
though a proportion of the same drugs is or may have been for the
defendant’s personal consumption.” (emphasis added)
 - 17 -

41. See also HKSAR v Yu Wai Nang CACC 383/2013 (unreported),

at paragraph 16, per Pang J (as he then was).

42. To conclude, the answer to Question (a) must be in the negative.

It is respectfully submitted that the prosecution has no duty to amend
an indictment to cater for different possible defence scenarios and
tactics. The prosecution is justified to adhere to a single count of
trafficking since the evidence adduced by the prosecution at trial
strongly indicated possession of two batches of drugs being part of the
same criminal activity.

Question (b)

43. The ultimate responsibility to ensure that a defendant is not

denied a fair trial rests upon a judge. Such responsibility should not
be extrapolated into a finding that a judge should often initiate steps on
his own motion to speculate all different possible defence scenarios,
particularly when there was no or not sufficient basis supporting a
particular defence or when neither party makes any application. On
the contrary, a trial judge would only take the initiative in rare
circumstances. One example is calling a witness in a voire dire when
neither party wishes to call: R v Lam Wai Hang [1997] HKLRD 562, at p.
570J-572B.

44. The threshold for a judge to take the initiative to amend an

indictment when the prosecution chooses not to do so is even higher.
The power to amend an indictment is provided under section 23 of the
Criminal Procedure Ordinance, Cap.221, which reads:

Where, before trial or at any stage of a trial, it appears to the court

that the indictment is defective, the court shall make such order for the
amendment of the indictment as the court thinks necessary to meet
the circumstances of the case unless, having regard to the merits of
the case, the required amendments cannot be made without justice.
 - 18 -

45. The circumstances in which an indictment is regarded as

“defective” include:
(a) The indictment is bad for duplicity;
(b) The particulars of the indictment disclose no offence;
(c) The indictment does not accord with the evidence adduced
in the depositions; and
(d) The indictment does not accord with the evidence adduced
at the trial. (see HKSAR v Gurung Laxman [2017] 3 HKLRD
483, at paragraph 59, per McWalters JA).

46. It is submitted that none of the circumstances rendering an

indictment to be “defective” existed in the present case. Clearly, the
single count of trafficking in dangerous drugs did not disclose more
than one offence and totally accorded with the prosecution case and the
evidence adduced at trial. Of particular importance, there was no
evidence adduced at trial that the Appellant had partial possession of
the two batches of drugs. Hence, partial possession was never a live
issue at any stage of the trial.

47. The Appellant relies on the legal principles of Ho Hoi Shing to

argue that the Judge should have left alternative verdicts to the jury in
the present case. It is noteworthy that the relevant principles do not
support the view that all possible defence scenarios should be put to a
jury. As per Chan PJ in Ho Hoi Shing, at paragraphs 14 and 15:

“ Not every possible alternative, however inconsistent with or

unsupported by the evidence, has to be placed before the jury. An
alternative is to be left to the jury only if there is evidence upon which
a reasonable jury might return a verdict on that alternative…. If it
were otherwise, the jury may be confused or unnecessarily burdened
with additional issues which do not stand the slightest chance of
succeeding. This will not do justice to either the prosecution or the
accused…
 - 19 -

That is to say, 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; in other words, an
alternative verdict should not be put to the jury if there is no evidential
basis upon which a reasonable jury could have come to that alternative
verdict...” (emphasis added)

48. Plainly, there was no sufficient evidential basis to suggest the

secondary defence of partial possession in the present case. It was
never raised in the defence case. It should be borne in mind that the
so-called secondary defence scenarios, namely that the Appellant was
leaving the Room with the 1st Batch of drugs which he had purchased
from Wai Wai17 or he brought the 1st Batch of drugs to the Room to
share with Wai Wai18, were randomly canvassed by defence counsel in
his closing address with absolutely no evidential basis.

49. The reasoning of McWalters JA, which was relied upon by the
Appellant, that the secondary defence, namely that the drugs in the
Room belonged to Wai Wai to the exclusion of the Appellant, was a live
issue and supported by evidence, rests on the assumption that the jury
did not accept the Appellant’s admissions to his possession of the drugs
and the evidence of the finding of the keys to the Room on his person.19
Although His Lordship acknowledged that the relevant evidence was,
if accepted, “very strong, indeed overwhelming”, he pointed out that “the
evidence was contested and it would be usurping the function of the jury to
say that the jury would have to accept this evidence.” 20

50. With respect, the reasoning of His Lordship is fraught with

logical fallacies. While it is entirely correct that a judge should not
usurp the function of the jury, it is bewildering why the jury were
assumed to have rejected overwhelming or compelling evidence,

17 Closing speech of defence counsel: p.175O-S.

18 Closing speech of defence counsel: p.178J-N.
19 The Judgment: paragraphs 44 , 47 and 49.
20 Ibid, paragraph 47.
 - 20 -

merely because it was contested. When evaluating whether there is

sufficient evidential basis for an alternative verdict, a judge should not
be required to engage himself in the burdensome task of speculating
the remote possibility of a particular piece of evidence being rejected by
the jury, in particular when the evidence is cogent and compelling.

51. In HKSAR v Akhemetzyanova [2012] 5 HKLRD 708 (CA), the

applicant was found in possession of a packet containing about 9
grammes of Ice in her jeans pocket and seven packets containing a total
of about 80 grammes of ketamine in her handbag when she was leaving
from a premises. Under caution upon arrest, the applicant answered,
“I am not drugs trafficker, these were not mine.” The defence case, similar
to the present case, was that none of the drugs were found on the
applicant and she was framed up by a police officer.

52. It is interesting to note that McWalters J (as he then was) in

holding that there was no evidential basis to leave an alternative verdict
of simple possession said in Akhemetzyanova, at paragraph 57:

“ … Not only was it not the applicant’s case that she was in simple
possession of the dangerous drugs but also the quantity of the
dangerous drugs, namely over 80 g of ketamine and 9 g of Ice, its value
($17,754), in the context of the applicant’s evidence that she earned
about $6,000 per month, together with the nature of the packaging of
the seven packets of ketamine were overwhelmingly compelling factors
to the contrary. There was no evidential basis upon which it was
appropriate to leave the alternative verdict of simple possession of
dangerous drugs to the jury.”

53. Obviously, McWalters JA used a different approach in the

earlier case by taking into account the evidence of the prosecution and
 - 21 -

the defence case, without assuming any compelling but contested

prosecution evidence being rejected. The Respondent submits that
the approach of His Lordship in Akhemetzyanova should be the correct
one.

54. Indeed, the proposition advanced by the prosecutor in the

present case that the Appellant could be convicted of the charge of
trafficking if the jury were satisfied that he was in possession of only
some of the drugs was well supported by authorities: R v Peevey (1973)
57 Cr App 544 (CA), at p.557, per Lawton LJ (as he then was); Lo Kwong
Hing v R CACC 593/1979 (unreported), at p.7, per Roberts CJ and
HKSAR v Tsoi Chung Fuk, Mickey [2017] 1 HKC 501, at paragraph 70, per
Yeung VP.

55. Notwithstanding the proper proposition advanced by the

prosecutor, the Judge was generous in acceding to the approach
advanced by defence counsel. The direction of “all or nothing” was
entirely favourable to the Appellant as he was entitled to a complete
acquittal if the jury were satisfied that any one of the two batches was
not or might not have been in the Appellant’s possession. It is
untenable to argue that the Appellant was denied a fair trial as he
obviously had the benefit of the Judge’s generous direction – which was
contrary to the established authorities - sought by him during trial.

56. The Appellant argues that although the “all or nothing”

direction appeared to be favourable to him, the jury might
unconsciously over-convict the Appellant as they were presented with
a stark choice between complete conviction and complete acquittal.
Such argument cannot stand. Firstly, the jury were given a very
simple, straightforward direction and any suggestion that the jury did
not understand or follow the direction goes contrary to the assumption
of our criminal justice system that the jury faithfully abided by and
obeyed the Judge’s instructions: Taylor (Bonnet) v R [2013] 1 WLR 1144
(PC), [2013] UKPC 8, at paragraph 25, per Lord Hope; HKSAR v Kissel
[2014] 1 HKLRD 460 (CA), at paragraphs 115-117, per Yeung VP; and
 - 22 -

Dupas v R (2010) 241 CLR 237, at paragraph 28. Secondly, as pointed

out earlier, there was indeed no evidential basis to support the so-called
intermediate alternative, i.e. partial possession of the two batches of
drugs.

57. The Appellant further argues that the absence of leaving the
alternative verdicts resulted in unsatisfactory summing up of the Judge.
As analyzed above, the Judge was entirely correct in not leaving the
alternative to the jury.

58. There was no risk that the jury would decide the case on the
basis of a selection between the credibility of the prosecution version
and the defence version. Indeed, the Judge did specifically direct the
jury as follows:

“ … It is for you to decide whether you believe the defendant’s

evidence and that of his witnesses, or whether it may be true. If the
account given by the defendant is, or may be true, then the defendant
must be acquitted.

But please bear in mind this: this is not a case of preferring one
version of events over the other. Even if you entirely reject the
account given by the defendant, that does not relieve the prosecution
of its burden of making you sure by evidence of the defendant’s guilt
on the charge he faces.” (emphasis added)21

59. The relevant direction of the Judge was clearly consistent with
the principle set out in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at
paragraphs 26-27, per Bokhary PJ.

60. Further, on the above analysis, the Judge had accurately, fairly
and properly put the defence case to the Jury, namely that the
Appellant’s case was that he was in possession of none of the drugs and

21 Transcript of summing up [A/1/15A-F].

 - 23 -

the possession of just the drugs in the Sling-bag had not been a live
issue in the trial. On the other hand, the approach of “all or nothing”,
acceded to the request of the defence, clearly required the jury to
consider possession of the different batches of drugs individually. (see
Transcript of summing up: [A/1/14I-Q]). By their verdict, the jury
clearly accepted that the Appellant possessed all three batches of drugs
for the purpose of trafficking.

61. On top of that, the summing up of the Judge in relation to Wai

Wai was proper and fair. The transcript of R v Nelson [1997] Crim LR
234 (CA) contained the following guidance of Simon Brown LJ:

“… Every defendant, we repeat, has the right to have his defence,

whatever it may be, faithfully and accurately placed before the jury.
But that is not to say that he is entitled to have it rehearsed blandly
and uncritically in the summing-up. No defendant has the right to
demand that the judge shall conceal from the jury such difficulties and
deficiencies as are apparent in his case. Of course, the judge must
remain impartial. But if common sense and reason demonstrate that
a given defence is riddled with implausibilities, inconsistencies and
illogicalities…there is no reason for the judge to withhold from the
jury the benefit of his own powers of logic and analysis.

Why should pointing out these matters be thought to smack of

partiality? To play a case straight down the middle requires only that
a judge gives full and fair weight to the evidence and arguments of
each side. The judge is not required to top up the case for one side so
as to correct substantial imbalance. He has no duty to cloud the
merits by obscuring the strengths of one side or the weaknesses of the
other. …” (emphasis added)

62. Robert CJ in R v Cheng Pak Chang [1977-1979] HKC 132 (CA), at

p.142H-I also expressed that:

“ We do not think that more can be required of a judge, in the course

 - 24 -

of his summing-up, than that he should remind the jury of the

principal issues faced by them in reaching their verdict and draw their
attention in a fairly balanced manner to the main features of the
defendant’s case. It must not be assumed that a jury is composed of
idiots. They have heard the evidence, and have been told that they
are judges of fact. If they have been correctly directed as to the law,
the judge is not obliged to remind them every piece of evidence which
is capable of an interpretation favourable to the defence. If such an
obligation were conceded, judges would play safe by reading out large
pieces of evidence and leave the weighing of it to the jury, virtually
unaided.” (emphasis added)

63. It is submitted that while the Judge referred to the part of the
cross-examination of the Appellant on Wai Wai [A/1/23T-24C], it was
unnecessary for him to repeat the answer of the Appellant as the jury
must have heard all the evidence. The reference to the cross-
examination should also be read in context. Clearly, the Judge merely
pointed out the doubts casted by the prosecution on the version of the
Appellant which was fair and proper. Further, the comments of the
Judge about Wai Wai’s criminal record [A/1/21H-T] were no more than
fair, balanced and logical analysis of the strength of this line of defence.
It is untenable to argue that any part of the summing-up would have
effectively shifted the burden of proof to the Appellant such that he was
required to prove his innocence by proving Wai Wai’s guilt.

64. Lastly, the little mention of ketamine in the summing-up could

not entail any improprieties in the summing-up of the Judge. As
pointed out above, even if it was accepted by the jury that the
possession of the drug was or might have been for the purpose of self-
consumption, it did not affect the conviction basis of the offence.

65. To conclude, the answer to Question (b) is “it depends” as the

propriety of a direction of conviction basis is hinged on the facts and
circumstances of each case. Nevertheless, this question of law is not
involved in the facts of the present case. The direction of the Judge of
 - 25 -

“all or nothing basis” did not result in any unfairness or prejudice to

the Appellant.

Substantial and grave injustice

66. The Judge adopted a direction sought by the defence, namely

conviction on an “all or nothing basis”. Plainly, the direction was
unduly favourable to the Appellant and it fell into his gamble tactics.
It is repugnant now for the Appellant to complain that he suffered
substantial and grave injustice merely because after taking his chances,
the verdict was not to his liking.

Disposal of this appeal

67. On the analysis above, the Respondent respectfully invites this

Court to dismiss the appeal.

Dated this 13th day of August, 2019.

(David Leung, SC)

Director of Public Prosecutions

(Maggie Yang)
 - 26 -

Deputy Director of Public Prosecutions

(Joe Hui)
Public Prosecutor

To : The Registrar, Court of Final Appeal

And to : Dr. Gerard McCoy, SC, Counsel for the Appellant
Mr. Richard Donald, Counsel for the Appellant
Mr. Adrian Lo, Counsel for the Appellant
Messrs. Cheung & Liu, Solicitors for the Appellant
 FACC 2 /2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 2 OF 2019 (CRIMINAL)
(On appeal from CACC No. 441 of 2015)

BETWEEN

HKSAR Respondent

and

CHAU YUI MING Appellant

Respondent’s Printed Case

Filed this 13th day of August, 2019.

Department of Justice
Prosecutions Division
5/F, High Block
Queensway Government Offices
66 Queensway
Hong Kong

Tel: 2867 3347

Fax: 2536 8302