HKSAR v. Tsoi King Hung

CACC 414/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2015

(ON APPEAL FROM HCCC NO. 23 OF 2015)

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Before: Hon Lunn VP in Court

Dates of Heading: 14 October 2016

Date of Judgment: 14 October 2016

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J U D G M E N T

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1.The applicant, who appeared in person, having been refused the grant of legal aid, sought leave to appeal against his conviction on 23 November 2015 after trial by Zervos J and a jury of a single count of unlawfully trafficking in dangerous drugs, namely 12.34 grammes of methamphetamine hydrochloride (“Ice”) and 2.55 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.In an attachment to Form XI, by which the applicant gave notice of his application for leave to appeal against his conviction, the applicant asserted simply “Have no idea.”

The trial

3.Count 1 of the re-amended indictment alleged that on 19 May 2014 at Room 1305, Kam Lam House, Choi Wan Estate in Kowloon Bay the applicant, together with Tsoi Man Chun, unlawfully trafficked in the dangerous drugs stipulated in the Particulars of Offence.

4.There was no dispute that the applicant was present at those premises, together with his mother, his girlfriend and another girl, on the afternoon of 19 May 2014 when a party of police officers, accompanying his father Tsoi Man Chun, searched the family home and found the dangerous drugs the subject of the count on the indictment.  The dangerous drugs were found in the applicant’s bedroom, from which he emerged together with his girlfriend at the time the police officers entered the premises.  They were found in five re-sealable plastic bags contained in a larger re-sealable plastic bag on top of a cardboard box, which was on top of a wardrobe in the applicant’s bedroom.  One of the plastic bags was marked with the name “Ruby”.

The prosecution case

5.It was the prosecution case that police officers had intercepted Tsoi Man Chun on the afternoon of 18 May 2014 at the ground floor of premises in Wong Tai Sin and found him to be in possession of 2.62 gammes of heroin hydrochloride and 0.28 grammes of Ice.  On the afternoon of 19 May 2014 they escorted him to the premises in Kowloon Bay, to which they gained access by using keys found on him.

6.After the suspected dangerous drugs had been found, in the presence of the applicant and his father, the applicant was arrested for trafficking unlawfully in dangerous drugs and cautioned.  The applicant replied “The Ice is my father’s.  Well, I just put it away for him.”  Subsequently, two makeshift hookahs and other paraphernalia for the consumption of dangerous drugs, together with a large number of re-sealable plastic bags, were found in a cabinet in the living room.  Having been cautioned again, the applicant said “The Ice pots are also my father’s.  Well, I put them away in the drawer for him.”  The applicant signed the written record which was made of his oral statements.

7.In a video recorded interview of the applicant, conducted by police officers on the afternoon of 20 May 2014, the applicant sought to explain his oral statements at the time of his arrest.  Of the presence of the Ice on top of his wardrobe, he said “I didn’t put it away for him.  I didn’t know that he put it there.”  Similarly, of the Ice pots he said “I wanted to tell you that the Ice pots…were my father’s, but it was not me who put them away for him.  That is my father put them away there by himself.” [1]

8.In summarising the prosecution case that the applicant, together with his father, was in joint possession of the dangerous drugs in the premises, the judge said:[2]

“ They point to the statement made by the defendant to the police officer, at the time of his arrest, the drugs being found in the defendant's bedroom, the quantity of drugs in question, the number of resealable plastic bags found in a cabinet in the living room and the yellow tape with the name of “Ruby” on it on one of the smaller plastic bags with drugs inside. And they rely on what the defendant said in his interview about writing the name down on the tag for his father.”

9.Of the element in the offence of ‘trafficking’, the judge reminded the jury of the prosecution case:[3]

“ The prosecution argue that evidence of trafficking is found firstly by the quantity of drugs involved, and ask you to draw the inference that the quantity exceeds the amount of drugs that would be used for self-consumption.

Secondly, by the number of resealable plastic bags found in the iPhone box in the cabinet of the living room and ask you to draw the inference that the nature and quantity of the bags was for packaging drugs, as seen with the drug exhibits found in the bedroom.

Thirdly, by the yellow tag with the name “Ruby” on one bag, which they ask you to draw the inference that the packet was to be given to a person with that name.”

The defence case

10.The applicant gave evidence in the defence case.  In summarising the defence case, the judge said:[4]

“ The defendant says it would appear the drugs were his fathers and it would appear his father hid the drugs in his bedroom. He says he did not know they were there and he had nothing to do with it. He also puts, as part of his defence, that if you accept what he said to the police officer at the time of his arrest as being true, which he says was wrongly stated because he was confused at the time, that he put away the drugs and the ‘Ice’ pots for his father. He did not possess them because he did not have any intention to exercise custody or control over them.”

11.Of the applicant’s evidence in respect of the discovery of the dangerous drugs on top of the wardrobe in his bedroom, the judge said:[5]

“ …when the drugs were found in his room, his father was cautioned by the police and asked that the drugs were his and he said they were his drugs. He said another police officer cautioned him about the drugs and he replied they were not his and that he didn’t know that such a bag of stuff was inside his room.”

12.Of the issues that arose in the case, the judge said:[6]

“ The issue in this case, you may think, comes down to whether the defendant, together with his father, possessed the drugs and to traffic in them(?), which they stored in the defendant's bedroom , or whether the drugs belonged to his father who hid them in his son's bedroom.”

13.In his review of the applicant’s evidence, the judge summarised the defence case:[7]

“ The defendant’s case is that he did not know the drugs were in his bedroom and he had nothing to do with the drugs. He says he did not possess the drugs, together with his father, and did not possess them together with his father for trafficking or for the purpose of trafficking in them.

He also says that, even accepting what he said to the police officer was true, that he put away the drugs and the ‘Ice’ pots for his father, he was not in possession of them.  The defendant says he wrongly said this at the time because he was confused.  Mr Roderick Wu for the defendant submitted that, by even putting the drugs and the ‘Ice’ pots away, did not constitute possession of them because he did not have custody or control of them.  That is a matter you may wish to consider.”

14.Then, the judge reminded the jury of the key issues in the case and said:[8]

“ You may feel it is a question of did the defendant, together with his father, possess the drugs or was it the case that the drugs were solely possessed by his father? If you find the drugs were solely possessed by his father, then the defendant is not guilty of both offences. If you find the defendant did possess the drugs, together with his father, then you go on to consider whether they were trafficking in them by storing them for distribution, supply or sale, or whether they possessed the drugs for the purpose of trafficking, that is, distributing, supplying or selling the drugs.”

15.Of evidence relevant to the defence case, the judge reminded the jury of the admitted facts, in particular that:[9]

“ The fingerprints and DNA of the defendant and his family and members as identified were not found on the dangerous drugs and equipment from the unlocked white cabinet in the living room or on the resealable plastic bags.”

The judge went on to direct the jury “You must accept those facts as having been proved.” [10]

Grounds of appeal against conviction

16.Although the applicant was given directions to file any written submissions he wished to advance in support of his application for leave to appeal against conviction, he filed none.  Yesterday, the applicant informed the Court that he wished to rely on written submissions dated 25 April 2016 purportedly advanced by his brother, Tsoi King Cheong.  Today, he confirmed that to be the case.

17.Complaint was made that it was impermissible for the prosecution to lead evidence that the applicant’s father was a drug addict.  To do so, was to invite the inference to be drawn that the applicant was also a drug addict.  Then, the rhetorical question was posed “Who put the drugs on top of the wardrobe?”  In that context, it was pointed out that no DNA or fingerprint was found on the dangerous drugs or the paraphernalia used to consume dangerous drugs.

18.Next, it was pointed out that the premises in which the dangerous drugs had been found was only the second home of the applicant’s father.  Finally, complaint was made those representing the applicant at trial had not called his mother, Madam Or Kin Chun, to give evidence in the defence case.  Today, he said that he told his lawyer that he wished to call her to give evidence.  He did not indicate what it was he wished her to say.

The respondent’s submissions

19.In her written submissions, Ms Jasmine Ching opposed the application for leave to appeal against conviction.  She said there was abundant evidence from which the jury was entitled to determine that the applicant was guilty of the offence: the dangerous drugs had been found in five re-sealable plastic bags on top of a wardrobe in his bedroom; he had made admissions to having handled the dangerous drugs, albeit that he said that they were his father’s dangerous drugs; similarly, he admitted having handled the paraphernalia used for consuming dangerous drugs.  Clearly, the jury had rejected his subsequent assertions in his video recorded interview and his evidence at trial, in which he resiled from those admissions and said that he had not handled the dangerous drugs or the paraphernalia.

A consideration of the submissions

20.Of the evidence of the applicant’s father’s connection with dangerous drugs, the judge directed the jury:[11]

“ I should also direct you on the evidence about the father being a drug addict and trading in drugs. You should not, on this basis, conclude that the defendant is also trading in drugs as you have to consider the two counts against the defendant on all the evidence that you have heard and seen. You may feel that it comes to down to whether the defendant, together with his father, jointly possessed the drugs or whether the father solely possessed the drugs.”

21.As noted earlier, the judge reminded the jury that “The fingerprints and the DNA of the defendant and his family and members as identified were not found on the dangerous drugs and equipment from the unlocked white cabinet in the living room or on the resealable plastic bags.”  That direction was based on the admitted facts [12] and related not only to the applicant but also to his father, Tsoi Man Chun, his mother, his girlfriend and the other girl present in the premises at the time of the search by police officers on 19 May 2014.

22.Of the pattern of the visits of the applicant’s father, Tsoi Man Chun, to the premises, the judge reminded the jury of the applicant’s evidence:[13]

“ He said his mother was the head of the household, but his father would come back every day but did not sleep there. If he did stay overnight, he would sleep in the living room. He said, with his father, the family would have meals three or four times a week together. He said his father would store his belongings in the flat by putting them everywhere. He did not know his father’s occupation and his communication with him was limited to asking him if he had a meal. He said his relationship was just general and they seldom chatted.”

23.It was an admitted fact that the applicant’s mother, Madam Or, had been arrested at the premises on 19 May 2014 and that, on the following day, she had been questioned under caution. First, a written record was made by the police officer in his notebook.  Then, a video record of interview was conducted of Madam Or. Subsequently she was released without being charged.  No evidence was led at the trial of what, if anything, Madam Or said to the police.  It is not known why she was not called the defence case.  That is a matter between the applicant, his solicitors and counsel.

Conclusion

24.I am satisfied that no reasonably arguable grounds of appeal against conviction have been advanced by the applicant.  Accordingly his application for leave to appeal against conviction is refused.

24.The applicant is reminded us that he has the right, if he wishes, to renew his application for leave to appeal against conviction to the full Court.  However, he is advised that if he does so and that Court is satisfied that the renewal was without justification that Court has the power to order that some of the time during which the applicant has been held in custody from the time he gave notice of his application to the hearing of the application shall not count towards completion of his sentence of imprisonment.

Mr Andrew LI, SPP, of the Department of Justice, for the respondent

Applicant appeared in person