HKSAR v. Chan Tak Wah

CACC 311/2017

[2019] HKCA 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 311 OF 2017

(ON APPEAL FROM HCCC NO 148 OF 2017)

________________________

________________________

Before:  Hon Macrae VP, Pang JA and Zervos JA in Court

Date of Hearing: 18 December 2018

Date of Judgment:  18 December 2018

Date of Reasons for Judgment:  9 January 2019

________________________

REASONS FOR JUDGMENT

________________________

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

1.The applicant was jointly charged together with his girlfriend, Ms Kwok, with one count of trafficking in 999 grammes of a crystalline solid containing 956 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 13 September 2017, following a trial before Anthea Pang J (“the judge”) and a jury, Ms Kwok was unanimously acquitted, whilst the applicant was convicted by a majority of 6 to 1. On 14 September 2017, the applicant was sentenced to a term of 20 years’ imprisonment.

2.The applicant applied for leave to appeal against his conviction only.  Having heard argument, we refused leave to appeal, dismissed the appeal and said we would give reasons for our decision in due course.  These are our reasons.

The prosecution case

3.It was the prosecution allegation that the applicant and Ms Kwok were acting in concert when they posted a parcel containing the Ice in question from a Post Office in Hong Kong to an address in Australia.

4.On the morning of Saturday, 7 May 2016, the applicant and Ms Kwok, who were both at the time living in the New Territories, went together to the Lei Cheng Uk Post Office in Cheung Sha Wan, Kowloon, to post a parcel to Australia.  On the mailing form accompanying the parcel, the details of the sender and recipient were both filled in by Ms Kwok, while the description of the contents (“Transformer”) and their value (“$1,000”) were written by the applicant.  The sender’s details comprised Ms Kwok’s name, address and telephone number.

5.Later that same afternoon, the parcel underwent a routine inspection at the Air Mail Centre of the Customs Examination Hall at Chek Lap Kok Airport, Hong Kong.  Amongst various other items in the parcel such as a Chinese tea packet, clothing and boxes of toys, Customs and Excise Officers found the Ice in question.  The average retail price of the Ice at the time of its seizure was agreed to be $301,698.

6.On 21 June 2016, Ms Kwok rang the Airmail Centre and requested to retrieve the parcel.  She and her father then went to the Airmail Centre on 23 June 2016, where Ms Kwok was duly arrested upon retrieval of the parcel.

7.The applicant was located and arrested on the same day.  Under caution, he admitted that he had mailed the parcel at the Post Office concerned with Ms Kwok.  Although he said he did not know exactly what was inside the parcel, he had been told by the person who asked him to send it that it contained clothes.  He further admitted receiving $1,500 at the entrance of the Japan Home Centre from an acquaintance called “Ah Mo”, which payment was to include the postage.  The applicant later elaborated in his evidence that Ah Mo had remained in the vicinity of the Post Office, whilst he and Ms Kwok were mailing the item.  The postage fee was $495.

The defence case

8.It was the applicant’s case that he had no knowledge of the Ice inside the parcel, which he was simply posting for a friend called “Ah Sing”, whom he had first met some four months earlier.  He claimed in evidence that about two weeks before the date of the offence, Ah Sing had met with him in a bar and asked if he could do him a favour and post an item for him, since he was very busy.  The applicant had agreed to do so.

9.On the night of 6 May 2016, Ah Sing telephoned the applicant and asked him to wait for him the next day in Sham Shui Po, Kowloon, to help him post the item.  Accordingly, the applicant, accompanied by Ms Kwok, went to Sham Shui Po the following morning.

10.When he and Ms Kwok arrived in Sham Shui Po, the applicant called Ah Sing, who informed him that “Ah Mo” would be coming over instead and that some clothes were to be sent on behalf of Ah Sing.  When Ah Mo arrived, the applicant was told that the clothes were still being packed and, accordingly, the three of them went off for breakfast.  After remaining at a restaurant for about an hour, Ah Mo received a telephone call and the three of them set off by taxi for the Japan Home Centre in Cheung Sha Wan.  Inside the taxi, Ah Mo instructed the applicant to collect a red plastic bag from the Japan Home Centre, inside of which would be the parcel he was to post.  Upon arriving at the Japan Home Centre, Ah Mo gave the applicant HK$1,500 in cash for the postage and told him he could keep the balance.

11.Having collected the parcel, the applicant then went to the Post Office with Ms Kwok to mail the parcel.  Upon entering the Post Office, the applicant received a text from Ah Mo with the address of the recipient of the parcel, which he was told was to be despatched by Speed Post. Ms Kwok then filled in the mailing form, while the applicant went to find a washroom because of a stomach upset.  Upon his return, the applicant brought the parcel for posting.  When the Post Office staff told him to complete the column as to the parcel’s contents, the applicant wrote “Transformer” with a value of “$1,000”, because he had just seen a film called “Transformers”.  He did not refer to the clothing, since the Post Office was about to close and he therefore just filled in details “casually”.

12.The applicant subsequently saw Ah Mo outside the Post Office and was told he could leave.  He then handed over the mailing receipt to Ah Mo and took a taxi home.  On his way home, Ah Sing called the applicant and asked him whose address had been put as the sender and whether it was real or not.

13.Two days later, Ah Sing called the applicant again and this time seemed very angry because the parcel was apparently still in Hong Kong.  He then sent the applicant a photograph of the parcel’s serial number via WeChat and asked the applicant to check it for himself.  A day or two later, Ah Sing called again and this time requested the applicant to pay $120,000 as compensation for the loss of parcel.  The applicant said he then asked Ah Sing what was contained inside the parcel that was so valuable, but Ah Sing told him that he did not need to know.

14.The applicant said that about three days later, he received a photograph from Ah Sing, again via WeChat, showing a person outside Ms Kwok’s home address.  A few days later, a message followed to the effect that if the applicant did not respond, action against him would be “escalated”. As a result, both the applicant and Ms Kwok changed their telephone numbers.  At the suggestion of Ms Kwok’s father, she decided to retrieve the parcel from the Airmail Centre.  However, the applicant was not able to accompany her when she did so.  He was subsequently located and arrested.

15.It was accepted at trial that what the applicant had subsequently told Customs Officers under caution was voluntary and admissible.

The issue at trial

16.The central issue at trial, therefore, was whether or not the jury could be sure that the applicant knew at the time he posted the parcel, on 7 May 2016, there were dangerous drugs concealed inside it.  The circumstances from which the jury were invited to draw the only reasonable inference that the applicant must have known of the presence of dangerous drugs inside the parcel were: (i) on the day in question, which was a Saturday, the applicant had travelled all the way from his home in Yuen Long to Cheung Sha Wan, ostensibly to post a parcel for a friend; (ii) Ah Mo appeared in Ah Sing’s place on the latter’s instructions and then remained in the immediate vicinity of, but without entering, the Post Office, throughout the time the parcel was collected by the applicant from the Japan Home Centre, conveyed to the Post Office nearby and subsequently posted by him; (iii) Ms Kwok’s particulars had been written on the mailing form; (iv) the contents were wrongly described on the mailing form as “Transformer”, with a value of “$1,000”; (v) although the applicant claimed that he had been told by Ah Sing that it would be a parcel of clothes, no reference to clothing was made on the mailing form; (vi) neither the applicant nor Ms Kwok had ever sent any parcel from a Post Office before, yet the applicant was prepared to send this one on behalf of another person; (vii) the quantity and value of the drugs which were apparently entrusted to an innocent agent was significant; and (viii) the applicant was paid a reward for his services of $1,500 inclusive of postage and transport, the postage being $495.

The summing‑up

17.At the outset of her summing‑up, the judge highlighted the essential issue for the jury[1]:

“Members of the jury, by now it must have been apparent to all of you that the central issue in this case is whether or not you can be sure, as suggested by the prosecution, that each of the accused knew full well that there were drugs concealed inside the parcel when they mailed it at the post office on 7 May 2016 and not any other later time.

Insofar as any accused is concerned, if you are sure, your verdict will be guilty.  If you are not sure or if it might be true that the accused had no knowledge about the presence of drugs inside the parcel when the same was mailed at the post office on 7 May 2016, then your verdict will be not guilty.”

18.Having reminded the jury that the case rested largely on circumstantial evidence, there being no direct evidence on the central issue of knowledge, the judge explained to the jury[2]:

“Circumstantial evidence can be powerful evidence. Indeed, it can be as powerful as or even more powerful than direct evidence but it is important that you examine it with care - as with all evidence - and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt or whether, on the other hand, it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation.  Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them and neither the prosecution, the defence, nor you should do that – no speculation.”

19.The judge then gave the jury the following direction on inferences[3]:

“The prosecution’s suggestion of the accused’s knowledge therefore depends upon the drawing of an inference against the accused. Drawing an inference means that if, from the oral evidence of witnesses or from the documents or Admitted Facts or physical exhibits produced, you find certain facts proved then you are entitled to infer from those proved facts the existence of other facts. That is, you may reach common sense conclusions based on the evidence which you accept but you must not speculate about matters when there is no evidence before you or speculate about what other evidence there might have been.

Do bear in mind that speculation, whether in favour of or against an accused, plays no part in your deliberations.  You should also know that you may only draw the inference if that inference is the only reasonable inference or the irresistible inference to draw from the proved facts.  So if, from a set of facts which you find proved, there is a reasonable inference to draw against the accused as well as one in the accused’s favour, then you must not draw the adverse inference against him or her.”

20.No complaint is made about these directions, which were in conformity with the Specimen Directions in Jury Trials, promulgated by the Hong Kong Judicial Institute.  We have set them out because they have a particular relevance to one of the grounds of appeal (Ground 1) advanced by Ms Catherine Wong, on behalf of the applicant.

21.At trial, defence counsel (not Ms Wong) had advanced a submission to the jury in his closing address, which the judge considered amounted to an invitation to the jury to speculate.  Defence counsel had posed the question whether, if the estimated retail value of the drugs in question was HK$301,698, “would it be unreasonable for … Ah Sing to ask for $120,000?  That may well be what he’s paid for it”.  The judge was evidently concerned about this submission and took the matter up with counsel in the absence of the jury at the conclusion of his speech.  Although describing the matter as a “minor point”, the judge queried whether counsel’s submission about the wholesale price Ah Sing might have paid for the dangerous drugs in question was not speculative without any basis in evidence.  Defence counsel immediately accepted that it was and that the judge could tell the jury that there was no evidence as to the wholesale price.

22.Accordingly, on the following day, when the judge came to sum up, she directed the jury as follows[4]:

“Paragraph 49 dealt with the average retail price and then the amount given there was HK$301,698. Now pausing here, members of the jury, although Mr Davies suggested to you that the wholesale price of the drugs would be less, there is no evidence on this point. You have not heard any evidence about any wholesale price, so please do not speculate – do not speculate.

Mr Davies also suggested to you that, as the drug found in this case was almost 1 kilogram, such could not be for retail and so the sum of $120,000 demanded by Ah Sing, as related to you by the 2^nd accused – that was what the 2^nd accused said, so Mr Davies also suggested to you that that sum would not be unreasonable.

Again, this demand of 120,000 was only related to you by the 2^nd accused.  He did not give evidence or any evidence as to how the sum was said to have been arrived at, so you should not and cannot speculate as to why such a sum had been sought.  In other words, Mr Davies’ suggestion that given the weight and that the wholesale price would be less, this demand of $120,000 would not seem to be unreasonable is not supported by evidence, so do not speculate – do not speculate.”

The grounds of appeal against conviction

23.Ms Wong raised two grounds of appeal on behalf of the applicant.  The first ground, arising in the context described above, avers that it was a material irregularity for the judge to tell the jury to ignore as speculative defence counsel’s point to the jury that the $120,000 demand for compensation may have been the wholesale price of the drugs in question and, therefore, not an unreasonable sum when compared with the retail price of $301,698, in the absence of any evidence as to how much the wholesale price of the drugs might have been (Ground 1).

24.The second ground of appeal contends that the conviction was unsafe or unsatisfactory, since there was no sufficient evidence to prove that the applicant knew that the contents of the parcel were dangerous drugs rather than some other form of illicit contraband; and the summing‑up was therefore deficient in not directing the jury that if the applicant thought that he might have been posting contraband rather than dangerous drugs, he would not be guilty of the offence charged (Ground 2).

25.In respect of Ground 1, Ms Wong submitted that the significance of the evidence of the subsequent threats and demand of $120,000 by Ah Sing was that it tended to show that the applicant and Ms Kwok may have been duped into sending the parcel.  Defence counsel had invited the jury to accept the applicant’s account as reasonable because the threats and demand for compensation by Ah Sing were credible and likely in the circumstances to be true.  He suggested that it would not have been unreasonable for Ah Sing to demand compensation of $120,000 rather than $301,698, since the former may well have been the price he paid for the drugs wholesale.

26.Since the truthfulness of the applicant’s account was a crucial issue for the jury, it was submitted that it was wrong for the judge to have neutralised the point by saying that there was no evidence of the wholesale price and that defence counsel’s submission involved speculation.  She relied on the decision in HKSAR v Heung Wing Keung[5] to suggest that it was not necessary to produce evidence as to the wholesale price.

27.In respect of Ground 2, Ms Wong submitted that not only was there no direct evidence pointing to the applicant’s knowledge of the Ice inside the parcel, but the inference that the applicant must have known of the existence of the Ice in the parcel could not be said to be irresistible.  In particular, it could not be said that there was an irresistible inference that the parcel contained dangerous drugs rather than any other form of illicit contraband, such as arms or ammunition.  The judge did not canvass this possibility with the jury, notwithstanding that it was again a point made in the closing speech of defence counsel.

Discussion

(as to Ground 1)

28.While it would be obvious to any jury that, generally speaking and as a matter of common sense, a wholesale price would be less than a retail price for any commodity, there was no evidence as to what the wholesale price of almost one kilogramme of Ice of high purity might be. It would have been entirely open for defence counsel at trial to ask for Senior Inspector Cheung Tai On of the Customs and Excise Department, who was listed as a witness on the back of the indictment and who had supplied details of the retail price for inclusion in the Admitted Facts, to give evidence before the jury as to the likely wholesale price of such a quantity.  However, defence counsel chose not to do so and the judge was, in our view, quite right to tell the jury that the suggested wholesale price of $120,000 was not based on any evidence, and was thereby speculative.

29.Had Senior Inspector Cheung been cross-examined on the point and testified that the wholesale price for this quantity of Ice of high purity was unlikely to have been a mere 40% of the retail value and more likely to have been rather higher, perhaps in the region of $200,000, defence counsel would probably not have made the point he did.  We do not know what the witness might have said if he had been asked.  However, by not eliciting such evidence when defence counsel could have done so did not entitle either him or the jury to speculate as to the value.

30.We do not think, with respect, that Ms Wong’s reference to HKSAR v Heung Wing Keung assists her.  In that case, unlike in this, the applicant had given evidence as to the price he had paid for a bulk purchase of heroin hydrochloride (namely $6,500), which represented “so great” a difference when compared with the admitted retail value (namely $27,000), that the Court held the judge was entitled to draw the inference that the applicant was not telling the truth when he claimed that he had possessed the drugs for his own consumption[6]. In the present case, as Ms Hermina Ng, on behalf of the respondent, pointed out, there was no evidence from any source of any purchase price, in circumstances which had nothing to do with personal consumption.

31.In any event, we agree with the judge that it was a “minor point”.  The central issue, which the judge repeatedly emphasised, was what the applicant knew at the time the parcel was posted, not days later when he was allegedly asked to compensate Ah Sing, assuming Ah Sing existed. Moreover, it seems rather odd that, if the applicant was an unwitting tool of Ah Sing and Ah Mo, he should have been asked to compensate anything.  This aspect of the applicant’s account was hardly very convincing.

32.However, ultimately, defence counsel expressly agreed to the course adopted by the judge after she raised it with him at the end of his closing address.  At no time thereafter, the summing‑up having commenced the following day, did defence counsel seek to revisit the matter in an attempt to change the judge’s mind about the direction she said she proposed to give to the jury; a direction to which he had assented.  In those circumstances, as Ms Wong had to accept, her predecessor as defence counsel would have had great difficulty in advancing this ground of appeal had he been conducting the appeal in her place; particularly when, as she also accepted, there was no question whatsoever of flagrant incompetence on his part.

33.In our judgment, this ground of appeal was untenable and we rejected it.

(as to Ground 2)

34.It was never the applicant’s case that, at the time he posted the parcel, he thought it might contain something illegal, in the sense that it could not be legally exported from Hong Kong or imported into Australia without proper declarations or authorisations; such as arms or ammunition, diamonds, ivory etc.  He claimed that he was told the parcel was to contain an innocuous commodity, namely clothing, in which case his description of the contents as “Transformer” was rather surprising.  It was the judge’s duty, in such circumstances, to bring home to the jury that they had to be sure, at the time he posted the parcel, that the applicant knew it contained dangerous drugs.  If they were not sure of such knowledge, they were obliged to acquit.

35.We are satisfied that this is exactly what the judge did.  She explained to the jury repeatedly that the prosecution had to make them sure that “each of the accused knew full well that there were drugs concealed inside the parcel when they mailed it on 7 May 2016 and not any other time”[7]; that “the accused knew that there was a dangerous drug concealed inside the parcel”, even though it was not necessary for the applicant to know what type of drug[8]; and that “actual knowledge of the presence of drugs must be proved”[9].  Suspicion as to the contents would not be enough[10].

36.The judge also made it clear to the jury, more than once, that even if they rejected the applicant’s evidence, they still had to be sure on the remaining evidence that he knew there were dangerous drugs inside the parcel at the time he posted it.  For example, she said[11]:

“It is for you to decide whether you believe their evidence or each of their evidence and whether what he or she said is or may be true. If the defence account or the version put forth by the accused is or may be true, then the accused must be acquitted. In other words, if you find it might be the case that the accused did not know that there were drugs when he or she mailed the parcel then it would mean that you cannot be sure that the accused had that required knowledge at the material time. If you are not sure, you must acquit.

However, even if you were to completely reject the account given by an accused, that would not relieve the prosecution of its burden of making you sure by evidence of the accused’s guilt in respect of the charge. You convict only if you are sure that on 7 May 2016 the accused mailed the parcel knowing that there were drugs inside. The burden, as I have said, is always on the prosecution to prove its case against the accused.” (Emphasis supplied)

37.Reading the summing‑up as a whole, the jury could have been in no doubt whatsoever that they had to be sure the applicant knew there were dangerous drugs inside the parcel at the time he posted it; and that anything less than full knowledge at that time of dangerous drugs inside the parcel would not be sufficient to convict the applicant of trafficking.  Had the applicant’s evidence been that he thought the parcel might have contained illegal contraband such as arms or ammunition, or diamonds or ivory, then the judge might well have impressed upon the jury, as part of her review of his case, that if that is what he may have thought, he should be acquitted of the count of the indictment because they could not then be sure that he knew the parcel contained dangerous drugs.

38.However, that was not his evidence.  Insofar as such a possibility could conceivably be said to have arisen on the evidence, the judge amply catered for it, as we have seen, by repeatedly and consistently reminding the jury that they had to be sure that the applicant knew there were dangerous drugs inside the parcel at the time he posted it before they could convict. Accordingly, we were not persuaded that there was anything in this complaint.

39.It was for these reasons, despite the able manner in which the submissions were presented by Ms Wong, that we refused leave to appeal against conviction and dismissed the appeal.

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

Ms Catherine K K Wong and Mr Tien Kei Rui, instructed by Eddie Lee &
Company, for the Applicant