HKSAR v. Liu Chun Sing

CACC 208/2016

[2018] HKCA 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2016

(ON APPEAL FROM HCCC 380 OF 2015)

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REASONS FOR JUDGMENT

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Hon M Poon J (giving the reasons for judgment of the court):

1.The applicant, who was unrepresented, sought leave to appeal against his conviction after trial on 27 June 2016 before Zervos J (“the judge”) and a jury of a count of a trafficking in a dangerous drug, namely 1,177.7 grammes of methamphetamine hydrochloride narcotic (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The applicant was sentenced to 22 years’ imprisonment. Having refused leave and dismissed the application, we indicated that we would hand down our reasons in due course. That we do now.

Prosecution case

2.The first prosecution witness, Madam Lee (PW1) was the owner of the flat which was rented to the applicant in June 2014. After the applicant defaulted in the payment of rent, Madam Lee entered and repossessed the flat at about noon on 29 December 2014 with her family members, property agent Mr Lam (PW2), a bailiff and a locksmith.  After the bailiff left, the false ceiling was checked and the drugs in question, contained in five transparent plastic bags and a white plastic bag printed with “9N9”, were found inside a “checkered” bag.  There were also two electronic scales and a stack of transparent resealable plastic bags.  Those items were later seized by the police, and upon analysis, the drugs were found to be 1,188.2 grammes of a crystalline solid containing 1,177.7 grammes of “Ice”.

3.CCTV footage showed that after the applicant was seen to have moved a lot of furniture out on 26 December 2014, he was captured entering and leaving the building on a total of five occasions on 27, 28 and 29 December 2014.  He was seen carrying a “checkered” bag and a “9N9” bag at 8:31pm and 11:05pm on 27 December, 2014 when entering the building.  Whilst there were times that he was in the company of another person, he was always the first to arrive and the last to leave.

4.The applicant was on arrested on 9 February 2015.  When he was cautioned in connection with the drugs found in the flat, he said: “I had moved out long ago and did not go back there.”  He subsequently took part in a video recorded interview during which he was shown various still photographs of the CCTV footage.  He explained that the “checkered” bag contained fruit and the “9N9” bag contained late night snacks.  He denied knowing various persons whom he was seen to be with in the CCTV footage.

Defence case

5.The applicant denied knowledge of the drug in the said flat and said that he had nothing to do with it.

6.The applicant explained that as he was arrested on 9 February 2015 which was long after he had moved out and therefore told officers that he had “moved out long ago and did not go back there”. He said that he lied when being interviewed because there was impropriety on the part of the police, namely, that he was induced to co‑operate in order to get bail and he was coached to say he did not know anyone in the CCTV footage.  He suspected the drug belonged to Ming Chai, who previously shared the flat with him.  He said the iron grille was never locked and could be pushed open with one shoulder and both he and Ming Chai had keys.

Summing-up

7.The judge summed up the Prosecution and the Defence case in the following way:

“The defence put forward in this case is that the defendant did not know that the drugs were in Flat C and he had nothing to do with them and that he did not have custody or control over them. The prosecution say that the defendant was the one who hid the drugs in Flat C and was in possession of them to traffic in them for distribution and supply.

Now, it is not for the defendant to prove his innocence, on the contrary, it is for the prosecution to prove the case they allege against him. Of course, if the account given by the defendant is true, or may be true – that is, he did not know the drugs were in Flat C, he had nothing to do with them and he did not have custody or control over them – he is not guilty of the count on the indictment.” (AB p 17K‑R)

8.He then identified the key issues in this case:

“Let me now return to some key issues in this case. The matters that you may wish to consider are as follows – although it is entirely a matter for you, and you may also wish to consider other matters that you may think are important – was the defendant induced or told to lie by the police when he was interviewed? What was the state of the locks to the flat and could anyone else have access to it? Were the drugs brought to the flat by the defendant, either on his own or with others? Was he carrying drugs in the ‘checkered’ bag and the ‘9N9’ bag? Were the ‘checkered’ bag and the ‘9N9’ bag that the defendant was carrying at the relevant times the same as the ones which contained the drugs? Did Ming Chai have access to the flat and could he have planted the drugs there without the defendant knowing?” (AB p 51Q‑p 52C)

Grounds of appeal

9.The applicant raised what he considered to be various doubts about the conviction.  He submitted that whilst he was captured by CCTV carrying a “checkered” bag and a “9N9” bag, they were relatively common bags and therefore it was not fair for the jury to infer from the judge’s direction anything to link them to the bags found to contain drugs in the false ceiling.  He complained about the direction on drawing inferences and the example given by the judge.  He stressed that other people also had keys to the flat, the iron grille was unlocked and anyone could gain access by just pushing the wooden door. He said that DNA or fingerprint evidence which could link him to the drugs were lacking.  He complained about not being shown the drugs at either his arrest or during his video recorded interviewed and during the trial.

10.He submitted that the judge erred in directing the jury that they only need to consider the evidence which could be used to determine the applicant’s guilt but not all the evidence before them; that the judge wrongly directed the jury that the statements given by him were mixed statements; and the judge’s direction on possession was insufficient in the circumstances of the facts of the present case.  He also complained that the verdict, reached in less than two hours, was an unfair verdict.

Respondent’s submissions

11.Mr Eddie Sean, SADPP, submitted that the direction given by the judge was balanced, not biased nor unfair.  The directions on the drawing of inferences and on “mixed statements” were in line with established legal principles and what he said about the “checkered” bag and “9N9” bag was not wrong.  There was no error, nor omissions nor mistake in law; and the judge did ask the jury to consider all the evidence.  The jury was entitled to draw the inference they did.

12.It was also submitted that there was nothing unusual about the time the jury had taken to deliberate.  The evidence against the applicant was overwhelming and this is not a case of lurking doubt.  The respondent submitted that there were no merits in the grounds presented by the applicant and the application for leave should be dismissed.

Discussion

13.The issue was whether the applicant possessed the drug for the purpose of trafficking in them for distribution and supply.

14.From the various grounds submitted by the applicant, we discern three main issues for discussion, namely the direction on inferences; direction on mixed statements and whether the judge’s direction on possession was sufficient for the evidence in this case.  We shall deal with them in turn.

Direction on inferences

15.The judge dealt with inferences in detail in his summing up (AB p 21O - 23G).  He explained that some facts could be proved by direct evidence whilst some facts could only be established by indirect evidence, when the jury would have to draw an inference from other facts which they were satisfied had been proven.  Before leaving the topic of inferences, he said:

“The question for you is whether it is the only reasonable inference as suggested by the prosecution or whether there is another reasonable inference as suggested by the defence. All this is really a reflection, members of the jury, of the requirement that they prosecution prove its case against the defendant beyond reasonable doubt.” (AB p 23D-G)

16.In his concluding remarks, he reiterated to the jury that they “can only draw an inference against the defendant if it is the only reasonable inference” (AB p 53R‑S).

17.Such a direction is in line with 21.3 of the Specimen Directions in jury trials promulgated by the Hong Kong Judicial Institute, which reads:

“So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference. [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that . . . On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that . . . ]”

18.To assist the jury to understand the concept of inferences, the judge gave an example:

“Let me give you an example. Say you were in Singapore and you met some person there. You later that day then took a flight to Hong Kong. Let us say, on the same day, a few hours after arriving in Hong Kong, you see the same person again. The only reasonable inference from those facts is that the person has also flown from Singapore to Hong Kong that day. You can only draw an inference against the defendant if it is the only reasonable inference to draw from the other proven facts. So in the example I have just given you, you would not be able to infer the person had travelled on the same flight as you because it is possible that he came on another flight.” (AB p 22J‑p 22O):

19.This example simply illustrates and elaborates what is meant by “the only reasonable inference” and contrasts competing inferences.  It is a common example used by judges to help the jury understand the concept which, in our view, is entirely appropriate.

Direction on mixed statements

20.The applicant submitted that his answers under caution and in his video recorded interview was totally exculpatory and the judge erred in directing the jury that they were mixed statements.  The judge’s directions are set out as follow:

“The defendant’s statement to the police and answers in the video‑recorded interview contain both incriminating parts and explanations. You must consider the whole of the statements in deciding where the truth lies. You may feel that the incriminating parts are likely to be true, for why else would he have made them? You may also take into account, when deciding where the truth lies, that the defendant’s explanations as contained in his interview have been, in certain respects, repeated on oath and have been tested by cross‑examination, such as he having no knowledge of the drugs or anything to do with them.” (AB p 29G‑M)

21.In HKSAR v Yuen Man Tung (unrep., CACC 442/2003), at para 18, the Court of Appeal said:

“. . . Whether a statement is or is not wholly exculpatory is not a question resolved by having regard to the issues which remain to be determined in the light of the admissions made at the time of trial. Its nature is to be determined rather by its content at the time it is made. If it is adverse to the person making it in relation to an important element of the offence charged - and this is not intended to be an exhaustive delineation, but merely one that suffices for the purpose of the present case - then self‑evidently it is not wholly exculpatory . . . ”

22.In HKSAR v Lo Wai Ming [2007] 3 HKLRD 191, the Court of Appeal stated:

“20. A statement which contains admissions does not change in nature simply because the matters the admissions pertain to become dead issues at trial. The statement, if ‘mixed’ in its nature, remains so. Nor do those admissions have to directly go to an element of the offence. They may be circumstantial in nature. But if they are such as to be able to materially assist the prosecution to prove its case against the defendant they render the nature of the statement ‘mixed’.”

23.In the present case, the applicant said under caution that he had moved out long ago and did not go back there.  He admitted in his video recorded interview having rented the flat, vacated it, kept the key and returned there on a number of occasions afterwards with the “checkered” and plastic bags which happened to look the same as those found to contain drugs a few days thereafter.  This was all evidence which was able to materially assist the prosecution to prove its case against the applicant.  Therefore, although it also contained parts in which he denied knowledge of the drugs or anything to do with them, the judge rightly identified it as a mixed statement and gave the appropriate directions.

Direction on possession

24.The applicant gave evidence that it was possible that Ming Chai, who had access to the flat, planted the drugs there. (AB p 40O‑Q, AB p 47K‑L)

25.There was lengthy discussion between the judge and counsel whether to give a direction on joint enterprise or guilt by association (AB p 44‑49).  Whilst it was suggested by counsel for the applicant that a joint enterprise direction might be necessary, in the sense that the jury would have to be sure that the applicant was in a joint enterprise with Ming Chai in order to convict him, the judge rightly pointed out that that would be tantamount to changing the defence case (AB p 44M‑O), and focusing on a case against Ming Chai rather than against the applicant (AB p 45A‑B) when the focus had always been that the jury had to be sure of the applicant’s possession before they went on to consider whether he was in possession of the drugs for trafficking.  The judge directed them on possession:

“. . . An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place, and that any of them may go there to take or move some of the articles as and when they see fit, then all are in control of the product in the sense that I have described control and all are in possession of it.” (AB p 19R‑U)

26.In any event, it was mere speculation on the applicant’s part in his evidence that it was Ming Chai who planted the drugs there (AB p 46A‑D).  The judge gave the following direction to the jury which, in our view, is favourable to the applicant and appropriately covered the circumstances of the present case:

“If you accept that what the defendant said about Ming Chai possibly planting the drugs in Flat C and that he was not a party to the drugs being there was or may be true, then he is not guilty of the charge.” (AB p 52C‑E)

The other grounds

27.The judge did address the issue of whether “the ‘checkered’ bag and the ‘9N9’ bag that the defendant was carrying at the relevant times were the same as the ones which contained the drugs” (AB p 52A‑B).  The judge also stated:

“. . . the prosecution says that the only reasonable inference to draw from those facts is that they are the same bags.

On the other hand, the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw and that another inference one might reasonably draw is that they are similar but not the same because the bags are commonly available.” (AB p 22S‑23C)

28.The judge told the jury to consider the defence submission that no fingerprints were found on the items and that there were other items in the flat that did not belong to the applicant (AB p 53E‑H). When summing up the defence case, the jury was told that Ming Chai had a set of keys so he had easy access to the flat (AB p 40P‑Q), and the applicant “insisted that the iron grille was unlocked and the wooden door could be opened by pushing it with one shoulder”. (AB p 43D‑F)

29.These are all findings of facts within the province of the jury, and the judge has already told the jury that their responsibility was to judge the evidence and decide all the relevant facts in this case (AB p 13P‑S). At no time did the judge direct them only to consider the evidence which could be used to determine the applicant’s guilt.  What the judge said was:

“You do not have to decide every point which has been raised, only such matters as will enable you to say whether the count against the defendant has been proved. You will do that by having regard to the whole of the evidence . . . ” (AB p 13T‑14B)

30.Whilst the applicant alleged that he was not shown the drugs at his video recorded interview, it is clear from the interview that he was shown photographs of the packet of drugs and his reply was those were not his and he had no idea about them.  At the trial, the seizure of the drugs was admitted by way of admitted facts pursuant to s 65 of the Criminal Procedure Ordinance, Cap 221 and produced accordingly (AB p 7‑8). His claim of not being given any opportunity to see the drugs is not supported by the evidence or the record of the trial.

31.The fact that the verdict was reached in less than two hours was no cause for concern and does not on its own render a verdict unfair.

Conclusion

32.There was no merit in any of the various grounds of appeal that the applicant sought leave to argue.  Accordingly, the application for leave to appeal against conviction was refused and the appeal dismissed.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The applicant appeared in person