HKSAR v Lo Shing Lok
Court of Appeal
Criminal Appeal No. 5 of 2015
Macrae, McWalters and Pang JJA
22 February 2017

Trial – summing-up – whether trial judge inaccurately portrayed defence case and used denigratory and dismissive language – whether summing-up unbalanced and unfair

D was convicted of trafficking in a dangerous drug, namely 1 kg of cocaine. The prosecution case was that two police officers, PW1–2, intercepted D and his friend (“W”). A search of a bag D was carrying revealed three photo albums containing 41 laminated photographs. Suspecting there were dangerous drugs in the photographs, PW1 arrested and cautioned D who replied that he only carried the cocaine for someone, he had not yet been paid and it had nothing to do with W. The cocaine was later found impregnated in the tissue paper between the photographs. D and W were taken to a police station where D signed against a post-record. They were then taken to Police Headquarters (“HQ”), where W was left in a video recording interview (“VRI”) room and D was kept in a conference room for one hour and 25 minutes. At trial, D’s case was that W’s friend had passed the bag to W, who asked D to hold it a few times when he had to use WhatsApp, and D did not know the bag contained a dangerous drug. D alleged that the response to caution was fabricated by PW1; he only signed the post-record after being assaulted and threatened by PW1; he was told that if he cooperated, W would be released; and he was forced by PW1 to give a fictitious story in his interview. D, relying on the evidence of the exhibits officer, submitted that the testimony of police witnesses that D was put in a conference room because the VRI rooms were all occupied was untrue, relying on the evidence of the exhibits officer; and raised questions including as to the availability of VRI rooms and why D was kept in the conference room (“D’s Questions”). D sought leave to appeal against conviction on the ground, inter alia, that the Deputy Judge’s summing-up was unbalanced as it inaccurately portrayed the defence case and used denigratory and dismissive language when discussing it.

Held, granting leave, treating the hearing as the appeal and allowing the appeal by quashing the conviction, setting aside the sentence and ordering D to be retried on a fresh indictment before a different judge, that:

  • The Deputy Judge inaccurately described the defence claim that a VRI room was in fact available when D arrived at HQ and did not fully appreciate the context in which D’s Questions were raised. His comment, “Why the big fuss about the conference room and the VRI room?” would have only confused the jury as to the real defence contention that the delay in interviewing D was unjustified and the prosecution witnesses lied about it, lending credence to the defence claim that the delay was needed to coerce and coach D for his interview. Had D been put in a VRI room instead, there would have been no reason for the police not to immediately interview him.
  • The Deputy Judge also inaccurately portrayed the defence case as to whether PW1 administered the caution as documented in the post-record. D had highlighted the improbability of PW1’s evidence that in arresting and cautioning D, he stated, “there were a total of 41 laminated photographs containing suspected dangerous drugs”. The Deputy Judge appeared to have missed the defence point that since PW1 could not have immediately known the precise number of photographs in the albums, his evidence at least about the caution must have been a lie which was relevant to the jury’s assessment of his credibility.
  • A more serious example occurred when the Deputy Judge suggested the jury take a “broad view” of the defence case, including the allegation that the entire police team and a Complaints Against Police Office officer conspired to frame D, “Just to enable [W], the true culprit, to be exonerated?” This was not the defence case at all. Rather, it was that PW1’s evidence and case against D was all a lie. The Deputy Judge thereby unfairly misrepresented the defence case to the jury and having done so, his comments that were critical of it then assumed a legitimacy and force they should not have borne.
  • The Deputy Judge’s misunderstanding of certain elements of the defence case and his inaccurate portrayal of other elements of it were compounded by his adverse comments in respect of them and resulted in an unbalanced and unfair summing-up.

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