HKSAR v. Zou Bicai

CACC 196/2017

[2018] HKCA 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 196 OF 2017

(ON APPEAL FROM HCCC NO 17 OF 2017)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.The applicant faced an Indictment containing two counts of trafficking in a dangerous drug, namely, 107 grammes of a crystalline solid containing 30.1 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Count 1); and 10 tablets containing 0.06 gramme of nimetazepam (Count 2); both contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the offences. On 5 June 2017, following a trial before Deputy Judge McMahon (“the judge”) and a jury, the applicant was convicted on both counts and sentenced to an overall term of 8 years’ imprisonment.

2.On 31 January 2018, we refused leave to appeal against conviction and dismissed the appeal.  These are our reasons for so doing.

The prosecution case

3.At about 8 pm on 22 July 2016, two police officers, PW1 and PW2, were patrolling in the vicinity of Kam Tsin South Road, Ngau Tei, New Territories.  PW1 noticed the applicant walking out from a Chinese pavilion about 15 metres away from where he and PW2 were positioned.  He was walking quickly and was alone.  Suspicious of his actions, and noticing a bulge in his waistband, PW1 intercepted the applicant for a search.

4.Found tucked inside the applicant’s waistband was a “Four Seas” seaweed packet containing two further packets: one containing seven packets of a crystalline substance (the subject matter of Count 1), the other containing a packet of ten tablets (the subject matter of Count 2).  The applicant was cautioned in respect of what the officers had found and responded, “I thought those substances were ‘Wai Gor’.  Therefore, I picked them up, thinking I would consume them myself.”  The applicant was duly arrested and taken to the place he was staying for a search.  However, nothing suspicious was found.

5.The retail value of the “Ice” and the nimetazepam pills was estimated at HK$38,418 and HK$420 respectively as at the time of seizure.  The prosecution alleged that the applicant had possession of all of the dangerous drugs for the purpose of trafficking.

The defence case

6.The applicant elected not to give evidence. However, the defence called one defence witness, a Mr Chung, with whom the applicant had been staying on his trip to Hong Kong.

7.The defence case, as derived from his record of interview, was that the applicant had chanced upon the “Four Seas” packet in the pavilion but did not realise that the contents were dangerous drugs.  Rather, he thought they were ‘Wai Gor’ (or Viagra) and other medicine.  It was dark at the time and the applicant, not being a drug addict or otherwise familiar with dangerous drugs, had no reason to think that the contents were proscribed dangerous drugs.  In fact, the nimetazepam tablets looked like a commercially produced medicine.

8.In closing submissions, it was submitted on the applicant’s behalf that he was an unlikely drug trafficker.  He had very little money on his person when arrested, nor was there any suggestion of any activity connected with dangerous drugs in the place where he was staying.  It might well be that someone else had left the “Four Seas” packet in the pavilion, and that the applicant had simply discovered it and picked it up, without realising what it was.  It was suggested that given the short time between picking up the packet and his interception, the applicant may not have had enough time to form any intent as to what to do with the contents; whether to keep, discard or turn them into the police.

9.The applicant gave the following explanation of his actions in his video recorded interview[1]:

“A: Well, what happened after you saw the bag of things?

C: I was v-v-very curious at that time, so (I) p-picked (it) up to have a look, picked (it) up to have a look at this -- and took out the things inside.

A: Well, did you clearly (know) what you took?

C: (I) did not (know) clearly at that time.

A: Did you -- when you took that bag of things, did you have a clear look at the contents inside before taking (it)?

C: Orr. (I) did not look. (I) just picked (it) up naturally.

A: Where did you put (it) after picking (it) up?

C: After taking (it) out – (it) was taken out and put into t-this pocket on the right, this trousers waistband on the right.

A: Well, where did you plan to go after taking (it)?

C:  After taking (it), I originally saw -- wanted to walk a bit further (towards) the lights and s-see what was there, but once (I) stepped out, you guys caught (me).”

10.Later, he said[2]:

“B: Well, why did you pick them up and take (them) away together?

C: Because at that time, (I) thought those were Wai Gor. (I) was a bit greedy at that time.

B: Er- listen, apart from Wai Gor, there were still some white objects. Well, why did you take (them) away too?

C: (I) had not looked at them clearly yet.

B: Er- (you) had n-n-n-not looked at them clearly yet?

C: (I) had not looked at (them) clearly yet.

B: If you had looked clearly, what would you do?

C: I t-thought – (if) I had looked clearly, I would er- either throw (them) away or hand (them) in.

B: Er- y-you -- please repeat.

C: I-I would either throw them away secretly or hand them to you people, the police station.

B: That is, if you had looked clearly, you would -- you meant that (you) would either throw them away or f-find the police and hand them in, right?

C: Y-yes.

B: Well er- well, er- you mentioned taking those things to somewhere brighter for a look, well, to handle – h-how to handle -- well, do you yourself have the habit of er taking dangerous drug?

C:  No.”

11.As to why he hid the “Four Seas” packet in his waistband, the applicant said[3]:

“A: Well, I would also like to ask you this, y-you said er well, we have asked you before. You said that er- the things – the – t-t-that pack, that pack of suspected dangerous drugs we found upon search, er- you wanted to hand (it) or throw it away. Well, but y-y-you -- when (we) asked why you hid (it) in (your) waist, you said it was because you did not know what (it) was. Yet, why, for things that y-you did not – why did you er- put something unknown in (your) waist, (instead of) holding (it) in (your) hand?

C: Orr. Because it was very dark there at that time.

B: Er- because it was very dark there at that time?

C: Yes.

B: But if you -- but if the sky was dark, you, w-would there be any difference between holding (it) in your hand and ‘tucking’ (it) in the-th-the waisband?

C: Yes.

B: What differences?

C: Because (I) was g-greedy and was afraid that others might see me pick things up.

B: Er- orr. Do y-you mean that -- that is, you -- because you knew that you were greedy [C: Yes.] so you were afraid that others might see you picking t-these things up?

C: Yes.

B: Well, your -- you --, if so, you were greedy (and) were afraid that others might see you, actually y-you thought that this act of yours was -

C: Illegal.

B: You thought that was illegal?

C: Somehow illegal.

B: Well, I would like to ask you. You said besides seeing er- Wai Gor, there was also a bag of things in white which you could not see clearly what it was, but had you t-thought about what it was?

C: No.

B: That is, you did not know what (it) was after taking a look, but you never thought about what those could be?

C: Right. Because I – ne(ver) -- had dealt with these, so I did not know. (I) had only heard about (it).

B: Previously, had you er- you said you did not have the habit of taking dangerous drug?

C: Right.

B: That is, you have n-not taken any?

C: Right.

B: But had you seen any before?

C:  No.”

Grounds of appeal

12.Mr Chan Siu Ming, on behalf of the applicant, has argued two grounds of appeal.  Essentially, they form two aspects of the same complaint, namely that the judge failed to give the jury a proper direction as to the applicant’s intention at the time he picked up the “Four Seas” packet, in circumstances where the defence advanced was that he did not have the opportunity to appreciate what was inside.  Accordingly, there could not be possession of the contents of the packet in law.  Instead, the judge effectively withdrew the issue of possession from the jury when he directed them:

“The defence case in respect of this first matter does not dispute that the defendant was in possession of the “seven seas”[4] packet and its contents, so you may not have much difficulty in deciding that the prosecution have proven this first matter in each count, that is, that the defendant possessed the dangerous drugs.”

Discussion

13.The judge’s directions to the jury as to the elements of the offence of trafficking of which they had to be satisfied so that they were sure were as follows:

“In this case, the prosecution allege the defendant possessed dangerous drugs for the purpose of supplying or selling those drugs to another person or other persons. You may not convict the defendant on either count in the indictment unless you are sure in respect of that count that the prosecution have proven that, firstly the defendant possessed the drug referred to in that count; that he knew that drug was a dangerous drug; and finally, that he possessed it for the purpose of selling or supplying it to another or others.

Now, the prosecution must prove each of those matters so that you are sure. If you are sure they have proven each of those three matters in respect of a count, you will find the defendant guilty on that count. If in respect of either count, you are not sure that all three of those matters have been proven, then you must find the defendant not guilty on that count.”

14.Pausing here, the judge was directing the jury in complete conformity with section 61 of the Specimen Directions on Jury Trials in respect of the offence of trafficking in a dangerous drug as promulgated by the Hong Kong Judicial Institute.

15.The judge then elaborated upon the three elements which the jury were required to find proved before they could convict. In explaining the concept of possession, he gave what has now come to be a standard illustration concerning custody and control, before correctly distinguishing between possession and ownership.  He concluded his directions on the first element of possession by saying:

“So in the present case, the defendant could only have had possession of the dangerous drugs in the bags and packet inside the “seven seas” aluminium bag if he had custody or control of the “seven seas” bag, and knew that there were things inside the bag, and he intended to exercise custody or control over those things.”

(There is no dispute that the judge’s repeated reference to the “Seven Seas” seaweed packet was a mistaken reference to the “Four Seas” packet).

16.It seems to us that this direction was entirely correct in law.  Contrary to Mr Chan’s submissions, the judge was emphasising that to constitute possession of the contents of the “Four Seas” packet, the applicant had to have custody or control of the packet and know that there were “things” inside the packet over which he intended to exercise custody or control.  The prosecution did not, at this stage, need to prove that the applicant knew that the contents of the packet were dangerous drugs: the prosecution merely needed to show that the applicant knew there was something in the “Four Seas” packet over which he was exercising custody or control.  Given the applicant’s answers to the police officer under caution that he thought that some of the contents were ‘Wai Gor’ as well as something else which he was going to take to the light in order to have a clearer view, the applicant was clearly in possession in the sense of custody or control of the “Four Seas” bag and its contents.  This matter could hardly have been in issue in the light of those answers.  Accordingly, it was in that context that the judge said:

“The defence case in respect of this first matter does not dispute that the defendant was in possession of the “seven seas”[5] packet and its contents, so you may not have much difficulty in deciding that the prosecution have proven this first matter in each count, that is, that the defendant possessed the dangerous drugs.”

That direction was unimpeachable in the light of the applicant’s own defence and the live issues at trial.  We do not accept that it was a misdirection.  There was no issue that the applicant had anything other than possession of the “Four Seas” packet and its contents.  The next issue for the jury – and the crucial issue in the trial - was the applicant’s knowledge of the actual contents and whether they were dangerous drugs.

17.The judge summarised the respective arguments of the parties on the second element of proof of knowledge of the contents of the “Four Seas” packet.  The prosecution’s position was that anyone looking at the packet would be bound to realise that it contained dangerous drugs: the defence position was “that the defendant did not know that the tablets and white crystals in the “seven seas”[6] packet were dangerous drugs”.  The judge highlighted the defence arguments that the lighting in the vicinity of the pavilion at the time was dim, the applicant was not a drug addict who might be thought to be familiar with drugs in general, and the tablets resembled commercially produced medicine.  It was entirely a matter for the jury as to whether they found proved beyond reasonable doubt that the applicant knew at the time he handled it that the “Four Seas” packet contained dangerous drugs.  Obviously, the jury were so satisfied.

18.The third element of the offence concerned whether the jury could be sure that the applicant was trafficking in the contents of the “Four Seas” packet in which he was knowingly in possession. Again, the judge properly summarised the respective arguments of the parties on this issue.

19.We found no errors at all in the judge’s directions in law, all of which were correct and in conformity with the Specimen Directions in Jury Trials, and all of which were tailored to the arguments advanced by the respective parties at trial.  The real issue in this case was not the applicant’s possession of the “Four Seas” packet and its contents: it was whether the prosecution could prove that he knew those contents were dangerous drugs.  The jury’s attention was properly focussed on that issue and the judge’s directions concerning it were impeccable.  The ultimate question for the jury was whether the prosecution could prove that he was trafficking in the same, knowing that they were dangerous drugs.

20.We considered that there was no merit in the applicant’s grounds of appeal.  Accordingly, leave to appeal was refused and the appeal dismissed.

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent

Mr Chan Siu Ming, instructed by the Legal Aid Department, for the Applicant

[1] Counters 98-107.

[2] Counters 274-287.

[3] Counters 334-357.

[4] The article was repeatedly misdescribed as the “Seven Seas” packet when it should have been the “Four Seas” packet.

[5] See footnote 4 supra.

[6] See footnote 4 supra.