HKSAR v. Liu Zhihua

HCCC 263/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 263 OF 2015

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RULING

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1.This is an application brought under the terms of section 16(1) of the Criminal Procedure Ordinance, Cap 221, that there is insufficient evidence revealed in the case papers to establish a prima facie case against the defendant on this charge of trafficking in a dangerous drug.

2.The relevant parts of section 16 provide as follows:

Subsection (1):

“ Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) …, the accused may, at any time—

…

(b) after the filing of the indictment and prior to his arraignment thereon,

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.”

Subsection (3):

“ The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged.”

3.I have not found this an easy application on which to reach a conclusion, although it was at my instigation that this application was made and only then having pressed Mr Kwan into making the application.  His own opinion was that he was going to wait until halftime to make a submission of no case to answer if it was then appropriate for him to do so.

4.The reality is that there is an abundance of evidence giving rise to suspicion about the defendant’s state of knowledge and belief when he made an arrangement for a parcel, which turned out to be a large quantity of cocaine valued at just over $1.5 million, to be received at his home address. 

5.The real question is whether the circumstantial evidence is sufficient to allow a jury to arrive at the conclusion that the only reasonable inference from the facts is that the defendant knew the dangerous drugs were contained in that parcel, as opposed to a speculative guess based on considerable suspicion.

6.The basic facts are these.  A parcel was sent from Bolivia via TNT Couriers, to the defendant’s home address in Tin Shui Wai.  On the parcel, aside from the defendant’s address, were written an English version of the defendant’s Chinese name and the telephone number of a Madam Liu, whom I will call the defendant’s landlady as the defendant was her tenant. She is not a relation of the defendant.  At the time of the delivery, which was at about 7 in the evening on 9 October 2014, the defendant was not at the flat in Tsz Fat House, Tin Tsz Estate.  He was downstairs in the grounds of that building.

7.The defendant had asked his landlady to take delivery for him in the knowledge that the package was about to be delivered.  She in fact duly signed the receipt for the parcel and, in due course, was arrested by the Customs & Excise officers, one of whom had posed as a TNT courier when the delivery was made.  That was what was referred to in the papers as ‘the first controlled delivery’. 

8.Ultimately, the landlady was not proceeded against.  She gave to the officers a description of her tenant to whom the parcel had been addressed, as well as his mobile telephone number, and using the description that they had been given, the Customs & Excise officers were quickly able to identify the defendant who was sitting on a bench in the grounds below the flat. 

9.When he walked away from where he had been sitting, he was intercepted, and the time was now about 7:20 pm in the evening.  He was asked what he was doing and he answered that he was waiting for his friend who lived at Room 3807 in Tsz Fat House, and that was in fact the address where he himself lived.  The officers then called the mobile number they had been given by the defendant’s landlady and, immediately, the defendant’s mobile could be heard ringing in his trousers pocket.  He was then arrested.

10.Under caution, what the defendant had to say was this.  He referred to his landlady as ‘Sister Chun’, a friend, “who rents the place to me to live”.  He went on to say:

“ I asked Sister Chun to receive a parcel for me for fear that it’s something smuggled, I asked Sister Chun to receive it for me”.

The defendant went on to tell the officers that someone he referred to as ‘Fei Sing’ had asked him to receive the parcel and that he had been told that it would contain medicinal herbs.

11.The defendant actually went on to say:

“ He also told me that he would give me $800; he would come here to take back the parcel and give me the money. He also told me not to open the parcel.”

That record was duly signed by the defendant.

12.During that evening, about an hour or so later, still on 9 October 2014, the defendant agreed to co‑operate in making a controlled delivery with the Customs & Excise Department to the man that the defendant called Fei Sing. Arrangements were then made for this to be put into action.  I do not need to go into detail about what was arranged but the defendant played his part in full and a controlled delivery was made to Fei Sing, who was waiting, on the following morning, at Exit D of the Tin Shui Wai MTR Station for the package to arrive.

13.He was with a woman who the defendant had heard Fei Sing refer to as ‘Fei Ma’.  The defendant recognised her by her description though he had not met her before.  Both of those people, Fei Sing and Fei Ma, were arrested and, in due course, for reasons which are somewhat obscure, it seems that neither of them was proceeded against and, oddly enough, an offer of a non‑prejudicial statement from the defendant was rejected.  In this way, the two bigger fish escaped prosecution, leaving just the defendant to be prosecuted in this whole saga. 

14.The full story provided by the defendant was then given on 10 October to the Customs & Excise officers in what amounts to a two‑hour long interview.  It seems, on the face of it, that he was completely frank with the officers.  Indeed, it may very well be that he considered himself to be in the position of a witness on the same side as the Customs & Excise, as he referred to himself as ‘the tainted witness’, which has a ring to it of having been told that that is what he might be.  He did so on two occasions during his interview.  He was told that he was not to talk about being a tainted witness because they had not reached that stage yet.  “We are now talking about the controlled delivery,” they told him, which had been conducted that morning.

15.In any event, in the defendant’s interview he made reference to herbal medicine, which he had referred to earlier, being what he had expected to receive.  He said he had told Fei Sing that it must not be a drug and that he had not asked for any reward although Fei Sing had offered him between five and eight hundred dollars.  He added that he was helping Fei Sing because of some arrangement that had been made for Fei Sing to help the defendant get his wife into Hong Kong.  He said he had fully co‑operated to get Fei Sing arrested.

16.When asked why he had waited downstairs when he knew perfectly well that there was a delivery expected at his flat in the block of flats, his explanation, put shortly, was that he wanted to make a private call to his wife in the mainland, which he did not want his landlady to hear as he had told her that he was divorced.  He then noticed that there was a lot of attention being paid to him by people in the area where he was sitting.  He said he was afraid that that was connected with the receipt of the parcel.  He spoke about being startled.  He thought probably that some illegal stuff had been sent here.

17.After his arrest, he asked to be allowed to help arrest the person who had asked him to receive the parcel and he also spoke of “damming up his anger” against that person when speaking to him on the telephone and trying to persuade Fei Sing to accept the parcel.

18.The defendant agreed, in the interview, that his suspicions had been aroused before 9 October but he had, I think he said, begged Fei Sing to help with his wife’s predicament in the mainland. He wanted her to be brought into Hong Kong.  He spoke of the fact that he had suspicions but had been promised that this would not be a parcel of drugs.  In fact, he had been promised that it would be nothing illegal and so he had then accepted the arrangement to take the parcel.

19.Later, the defendant made reference to ‘high grade cocaine’.  When asked about where he got the idea of ‘high grade’, because the Customs & Excise officer speaking to him had said he had never been told that, he then replied that he must have said it himself.  “I hate people,” he said, “who take white powder”.  Then he asked to be allowed to help in this situation because Fei Sing had taken advantage of him and his integrity.

20.I have had the opportunity—and it is a considerable advantage — of having considered the evidence over a number of days.  I have, obviously, to be very careful in my approach not to usurp the functions of a jury.  The test that has to be applied which is referred to in Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174, applicable to this kind of application, is whether a jury, properly directed, could, may or might conclude that the only reasonable inference to be reached on all the evidence is that the defendant’s account was a false one and to cover his knowledge that the package contained drugs.

21.I have decided, on reflection, that this is a matter for the jury and, accordingly, the application is dismissed.

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Jasper Kwan, instructed by Eric Cheung & Lau, assigned by Director of Legal Aid, for the defendant