HKSAR v. LIM HUA SOON

CACC 219/2022 [2023] HKCA 1272 in the high court of the hong kong special administrative region court of appeal criminal appeal no 219 of 2022 (on appeal from HCCC NO 283 of 2020)

BETWEEN

HKSAR Respondent and LIM Hua-soon Applicant Before: Hon Macrae VP in Court Date of Hearing: 8 November 2023 Date of Judgment: 8 November 2023

J U D G M E N T The applicant is applying for leave to appeal against conviction on a single count of trafficking in a dangerous drug, namely 1.99 ‍kilogrammes of a solid containing 1.71 kilogrammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap ‍134, following a trial before Deputy Judge Woodcock (“the ‍judge”) and a jury, for which he was sentenced to 17 years and 10 ‍months’ imprisonment. The grounds of appeal The main and specific complaint is that the judge did not remedy certain inappropriate questions asked by prosecuting counsel of the applicant in cross-examination, despite being requested to do so by defence counsel. Prosecuting counsel had put to the applicant that he was lying, going so far as to call him a “pathological liar”, yet nothing was said by the judge to undo the alleged prejudice caused by such questioning. An overview of the case The case concerned the collection of a parcel (Exh P1) addressed to “Jeremy Lim”, which was sent by airmail post to Hong Kong from France containing the subject-matter of the indictment. The ‍applicant was intercepted and arrested in the morning of 27 ‍November ‍2019 as he left the post office with the parcel. The prosecution relied on the applicant’s admissions to prove knowledge, the applicant having said under caution that he was to be paid $8,000 for collecting parcels addressed to

him, which included Exh P1 and which contained an unknown type(s) of drug(s). The defence case, on the other hand, maintained that the applicant had collected two parcels, one being Exh P1, which contained healthcare products to be sold or exhibited at a fair in Hong ‍Kong and the applicant had no knowledge of the drug(s) in Exh P1; the applicant claimed that the post-record of his admissions was fabricated by the arresting officer. The issue at trial, therefore, was the applicant’s knowledge of the contents of Exh P1. The prosecution case It was not in dispute that some four weeks earlier, on 30 ‍October 2019, the applicant had entered Hong Kong as a visitor through the Macau Ferry Terminal on his Malaysian passport, and was permitted to remain as a visitor until 28 ‍January 2020. He was staying at the United ‍Co-operative Guest House at Unite A3 on 7/F, Block A, Chungking ‍Mansions in Nathan Road, Kowloon, where he had rented a room until 1 ‍December 2019. On 22 November 2019, a Customs officer opened the inbound parcel Exh P1 and found 2 tinfoil bags with some dog food, and also 10 ‍packets of a drug, amounting to 1.99 kilogrammes of a solid containing 1.71 ‍kilogrammes ketamine valued at HK$1,096,490 at the time. The parcel had been sent from France, addressed to Jeremy Lim at Unit A-1, 8/F, Block ‍A, Chungking Mansions (which was neither a hotel nor a guesthouse) with

telephone number 5629 7560 (which was the applicant’s telephone number). The contents were declared to be dog food. On 25 ‍November ‍2019, Customs officers mounted an operation to deliver Exh ‍P1 to its intended recipient. When the operation failed, since no one was at the address at the time, a postal card was left in the letterbox informing the occupier that the parcel would be at Tsim Sha Tsui Post ‍Office for collection. The prosecution case was that in the morning of 27 ‍November ‍2019, the applicant came to the post office to collect Exh P1 and another parcel from the United States (which was not found to contain anything illegal); after three attempts, he successfully collected both parcels with the necessary documentary proof, whereupon he was intercepted and arrested by Customs officers as he left the post office. Some of the Customs ‍officers posed as postmen, while others remained outside the post office waiting for the applicant. The applicant was cautioned in Mandarin. He admitted at the scene inside a vehicle that the parcel was addressed to him (Jeremy Lim was his English name) and was to be collected by him; it was a parcel from France containing dangerous drugs but he did not know the type(s) of drugs; and he had just collected it from the post office. He did not know what was in the parcel from the United States and had been told not to open it. He was to be

paid $8,000 for collecting the parcels, after which a friend from Malaysia, whom he did not know how to contact, would tell him what would happen next. A post-recorded statement containing the details of his arrest and the admissions were made by the arresting officer (PW3), which was duly signed by the applicant. Following his arrest, Customs officers found on the applicant’s person two mobile telephones, each of which contained two SIM cards. Records of communications with a Malaysian telephone number, including voicemails and messages, were found on his telephone. Nothing illegal was found at the place where he was staying. The defence case The applicant did not dispute in evidence collecting the two parcels from the post office, but said that he did it at the request of a friend called “David Chai”. One parcel was for the applicant, containing healthcare products to be sold or exhibited at a fair in Hong Kong. The other parcel was for David Chai’s friend, who was supposed to come and collect the parcel from the applicant later. The applicant testified that the post-recorded statement was fabricated and made up by PW3: he had not made any verbal admissions under caution as to knowledge of the dangerous drugs. He further added that he was assaulted and forced to sign the notebook; that Custom officers refused to speak to him in Mandarin; and that he did not understand what

they were saying in Cantonese. He was not told his rights and on being taken back to his guesthouse, he was placed in a toilet for several hours. Discussion and remedy sought before summing-up There were relevant discussions between the court and counsel in the morning of 14 ‍November 2022 before the judge began her summing-up, concerning defence counsel’s complaint that prosecuting counsel had put to the applicant during cross-examination that he was lying, calling him a “pathological liar”, and that he was working with a drug syndicate. The defence maintained that prejudice had been caused to the applicant by such inappropriate questioning and comment, and the judge was asked to cure its alleged prejudicial effect. Reference was made to the case of HKSAR v Chow Wing Wai concerning the expression of an inappropriate personal opinion by prosecuting counsel, and it was submitted that the judge ought to direct the jury that such remarks were to be ignored. Prosecuting counsel responded that what he had put was not his personal opinion but derived from the applicant’s allegations that the prosecution witnesses were all liars, that they had assaulted him and fabricated his confession and, along with the interpreter, induced him to cooperate. Accordingly, what he had put to the applicant was not improper. The question of giving a lies direction was also raised by defence counsel,

but counsel ultimately said he was not insisting on such a direction, since the prosecution had made it clear they were not relying on lies to infer guilt. The judge resolved that she would not make any specific comment about the prosecution’s use of the word “liar” to the jury; she would, however, when dealing with the assessment of credibility, tell the jury that, while each side had said the other was not telling the truth, these were matters of credibility and fact for the jury themselves to decide. The judge added that the use of the word “pathological” was not necessary, but it was not the same situation as in Chow ‍Wing Wai, where the witness had been called a “silly girl”. Respondent’s submissions Ms Winnie Mok, for the respondent, submits that the judge had adequately addressed the complaint made by defence counsel, and had clearly reminded the jury to reach their verdict based on their assessment of the evidence, and that issues such as whether the applicant was in fact lying were matters of fact for the jury to decide. Moreover, when the judge informed the parties how she intended to deal with the issue, defence counsel did not demur. Ms Mok referred to the relevant parts of the summing-up: in particular, (i) the judge had reminded the jury that the speeches of counsel and her view of the evidence were not themselves evidence, whilst the jury could take into account

counsel’s arguments, they were not bound to accept them; (ii) the suggestions in counsel’s questions were, by themselves, not evidence, the suggestions only became evidence if the witness agreed with or adopted the suggestion; and (iii) the judge reminded the jury that each party was accusing the other of not telling the truth, which were matters of fact for the jury to decide: “When I refer to your assessment of the credibility of each witness, I mean to say witnesses include all five prosecution witnesses and the defendant. As is usually the case, the defence say the prosecution witnesses are not telling the truth. Here, that also includes the postman (PW1) and the freelance Mandarin interpreter (PW4). The prosecution, on the other hand, says that the defendant is not telling the truth. He referred to the defendant lying in cross-examination. He suggested to the defendant that he was guilty as charged. These are matters and facts that are for you to decide, not counsel nor myself. Your task is to reach your verdict only on the assessment of the evidence adduced and an assessment of the witnesses that you have heard.” In respect of the giving of a lies direction, Ms Mok referred to Yuen ‍Kwai ‍Choi v HKSAR and submitted that, in the present case, as accepted by defence counsel, the prosecution were merely challenging the applicant’s credibility when putting to him that he was

a liar, and there was no risk that the jury might regard any alleged lies as probative of his guilt. Accordingly, no lies direction was required. Consideration It is not unusual, in fact it is very common, for prosecuting counsel to cross-examine a defendant on the basis that he is not telling the truth. To accuse a defendant of “lying”, therefore, is certainly not objectionable; although the addition of the epithet “pathological”, albeit sometimes used for emphasis, does strictly carry with it the implication that the mendacity is a gross or extreme form of behaviour, and was unnecessary. However, in the present case, the applicant had accused almost everyone of lying, including the postal officer, the interpreter and the Customs officers who assaulted, ill-treated and induced him to confess. Prosecuting counsel was thus entitled as part of his case to put to the applicant that he was lying. Defence counsel raised his concern about prosecuting counsel’s questioning with the judge, who took time to consider whether, and if so how, she would deal with the matter. In the result, she decided to remind the jury that both sides were accusing the other of not telling the truth, but this engaged a question of credibility of witnesses, which was for the jury, as the triers of fact, to resolve. Since the prosecution were not relying on lies to prove their case, she took the view there

was no need for a specific lies direction, which defence counsel was not ultimately insisting upon in any event. I do not think it reasonably arguable that the judge’s decision can be impugned. She had heard the evidence and, as the judge presiding over the trial, was in the best position to determine how the matter should be dealt with. It should also be noted that in addition to the direction given at [16] supra, the judge also went on (less than a page later) to say: “The defendant elected to give evidence before you. This fact does not relieve the prosecution of the burden it has in proving its case of trafficking in a dangerous drug against the defendant. In other words, even if you were to completely reject the defendant’s evidence about not having any knowledge of the drugs inside the parcel, the burden is still on the prosecution to make you sure, on the evidence adduced, that the defendant indeed knowingly trafficked in the drugs in the parcel.” I do not consider this ground of appeal, in the context of the evidence, to be reasonably arguable. Inasmuch as this matter forms the basis of an allegation of an unfair and unbalanced summing-up, I do not consider this general complaint to be reasonably arguable either. I should say that I have also examined the summing-up as a whole but see nothing that might advance the appeal on this basis. Finally, for the sake of

completeness, prosecuting counsel’s suggestion in cross-examination that the applicant was communicating with a drugs syndicate was a matter of common sense. This was an enormous quantity of dangerous drugs, amounting to 2 kilogrammes of a solid containing ketamine, worth over HK$1 million. Clearly, the drugs had been procured and elaborately arranged to enter Hong Kong inconspicuously from France. Given that the applicant had been in Hong ‍Kong since 30 October 2019, there were obviously other people outside Hong Kong involved in this exercise. There is nothing in this complaint. The application for leave to appeal is refused. The applicant is informed that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but is also warned that that Court has the power to order the loss of any time he has served in custody pending the hearing of the appeal, if it were to come to the view that there was no justification for the renewal of the application. (Andrew Macrae) Vice President Ms Winnie Mok SPP, of the Department of Justice, for the Respondent The Applicant appeared in person