HKSAR v. Lai Kam Fat

[English Translation – 英譯本]

CACC 95/2017

[2018] HKCA 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2017

(ON APPEAL FROM HCCC NO. 222 OF 2015)

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J U D G M E N T

Hon Yeung VP (giving the judgment of the Court):

Introduction

1.On 24 September 2014, at Frankfurt Airport, German Customs officers intercepted three postal parcels from Bolivia and destined for Hong Kong. The names, addresses, and contact phone numbers of the recipients of the three postal parcels were all different.

2.The three postal parcels each contained a similar quantity of powder with a similar quantity of cocaine respectively. The total weight of the powder was 4.96 kg and the total weight of cocaine was 4.23 kg with a market value of HK$4,800,000.

3.On 7 October 2014, a German Customs officer escorted the three postal parcels to Hong Kong and handed them over to the Customs and Excise Department for their handling.

4.On 8 October 2014, Customs and Excise Officer 07193, taking charge of one of the parcels [recipient: John Lam, address: 6/F, 333-337 Tai Nam Street, Sham Shui Po, phone number: 9761 7852], used a mobile phone provided by the Department to call the recipient of the parcel, John Lam. At 11:30 am on the same day, (the officer) took the parcel to 333-337 Tai Nam Street, called the number 9761 7852 and succeeded in arranging the delivery of the postal parcel to the recipient.

5.Subsequently, Tang Kwong-ho (transliteration) [Tang] opened the main door of Ground Floor, 333-337, Tai Nam Street.  Upon inquiry, the customs officer handed over the postal parcel to Tang. Upon signing to acknowledge receipt (of it), Tang returned to the building with the parcel, but he was eventually arrested.

6.Customs and Excise Officer 06143 arrested the Applicant [Lai Kam-fat] at 12:05 p.m. the same day at the Pei Ho Street Market near the exit on the ground floor of Kweilin Street and found five mobile phones on his person. There were 15 photos on a black Samsung mobile phone, all related to the tracking of the deliveries of the three postal parcels involved in the case. The information stored on a white Samsung mobile phone showed 10 records of communications with Tang’s mobile phone from 9:48 a.m. to 11:54 a.m. on 8 October 2014. The records on the other two mobile phones also showed communications with the Customs officer on many occasions. These communication records were all related to the arrangements with the Customs officer(s) for the delivery of the postal parcel(s) involved in the case.

7.Customs and Excise Officer 98201 also found three pieces of paper among the seized items of the Applicant which showed the air waybill numbers and the recipients’ names of the three parcels involved in the case.

8.With respect to the above incident, the Applicant was charged with conspiracy to “traffic in dangerous drugs” with Tang, “Ko Lo (transliteration)” and other unknown persons. The Applicant pleaded not guilty and was tried before Li J [the trial judge] sitting with a jury.

9.On 24 March 2017, the jury unanimously found the Applicant guilty of the charge. On 27 March 2017, the trial judge sentenced the Applicant to 29 years’ imprisonment.

10.The Applicant filed an application for leave to appeal against conviction and/or sentence.

11.On 9 December 2017, the Applicant notified this Court that he withdrew the application for leave to appeal against sentence and consequently the application was dismissed. Accordingly, this Court only needs to deal with his application for leave to appeal against conviction.

Prosecution Case and Evidence

12.The Prosecution alleged that the Applicant entered into an agreement with a man called “Ko Lo” and Tang, conspiring to receive three postal parcels from Bolivia which contained a large quantity of cocaine. As a result, on 8 October 2014 the Customs and Excise Department carried out the abovementioned controlled delivery operation of one of the postal parcels. The Prosecution alleged that the Applicant knew that the postal parcel contained cocaine and therefore got Tang to receive (it) for him. The Prosecution alleged that the Applicant was responsible for tracking the postal parcel, contacting the courier and making arrangements for Tang to receive the postal parcel.

13.In addition to the undisputed facts of the background described above, the Prosecution’s evidence against the Applicant mainly came from Tang. Aged about 18, Tang had just dropped out of school at the time of the case. After Tang had admitted “trafficking” in relation to his receiving a postal parcel containing cocaine on 8 October 2014, he testified against the Applicant as an accomplice.

14.Tang stated in his evidence that three or four months before the case he came to know and socialise with the Applicant. During their socialisation, the Applicant would pay the expenses on most occasions. Tang considered the Applicant a trustworthy person who kept his word.

15.According to Tang, in early September 2014, the Applicant asked him to help receive (a) postal parcel; the postal parcel was “coke”. Tang stated that he knew “coke” was a dangerous drug but had no idea what kind of dangerous drug it was.  Tang stressed that the Applicant had indicated that “the (one) up above would throw down 100,000 dollars” in which each person could get half. After Tang had agreed, the Applicant instructed him to wait for phone calls, and Tang was aware that he was going to receive more than one parcel. According to Tang, at the time of the case he had just dropped out of school. With no income, he had to depend on his family to give him pocket money and so $50,000 was a huge amount of money. Moreover, he did not understand the serious consequences of trafficking in dangerous drugs, so he accepted the Applicant’s proposal.

16.According to Tang, on the day in question, the Applicant instructed him to receive the postal parcel, but he was worried that he would be arrested. The Applicant suggested that Tang should pretend he knew nothing if he was arrested; by doing so there would be insufficient evidence and the prosecution could not stand. Tang also thought that he would be fine by feigning ignorance.

17.Tang recounted that shortly before 10 a.m. on the day in question, i.e. 8 October 2014, the Applicant called him, told him to receive a postal parcel, and arranged to meet him at Sham Shui Po MTR station at 10:30 a.m. After they met, according to Tang, they went together to No. 333 Tai Nam Street. During that time, the Applicant instructed Tang to go into the building by pretending to be an occupant and to wait for his telephone instructions. Then the Applicant left immediately. As a result, after Tang had waited on the top floor of the building for several hours, the Applicant called, telling him to get ready to go downstairs to receive (a) postal parcel and to wait for his further instructions after receiving it. As it turned out, Tang went downstairs and saw the courier. Tang pretended he was Mr. Lam, but after checking his identity card, the Customs officer who was disguised as the courier pointed out that he was not Mr. Lam. Then Tang said he was receiving (it) on someone’s behalf. So the Customs officer who was disguised as the courier jotted down Tang’s name and the number of his identity card and handed to Tang the postal parcel involved in the case. When Tang was about to go back into the building, he was arrested.

18.According to Tang, while he was waiting on the top floor of the building, the Applicant called him and told him to open the main gate of the building to let the Applicant in. Also, many calls were made to instruct him to receive the postal parcel. Tang’s phone call records showed that from 9:56 a.m. to 12 noon on 8 October 2014, there were 10 phone conversations with the Applicant. Tang also said that during that period of time, the Applicant had entered the building via another entrance and had a conversation with him.

19.Tang admitted that after he was arrested, (he) did indicate to the Customs officer(s) that he had no idea what the postal parcel contained. He also said that it was parallel goods, which he received for other people for $100 or $200.  Tang admitted when he was interviewed by the customs officer(s), he feigned ignorance in order to exonerate himself.

20.Tang explained that during the video-recorded interview he did not tell the Customs officer(s) that he and the Applicant met up at Sham Shui Po MTR station, because at that time he did not know the Applicant was present. He gave his identity card to the Customs officer who delivered the postal parcel and signed the receipt because he thought it was normal procedure to do so, and he thought the person who delivered the parcel was a real courier.

21.The Applicant was questioned by Customs officers after his arrest.  The Applicant admitted that he had in his possession a black Samsung mobile phone on which there were 15 photos related to the postal parcel involved in the case. The Applicant stated that it was a person called “Ko Lo” who told the Applicant to take those photos on a computer and to show (them) to him. And on each occasion “Ko Lo” would give him $50. Later “Ko Lo” gave him $500 and requested the Applicant to receive three postal parcels on his behalf. The Applicant did not admit that he knew the postal parcel contained a dangerous drug.

22.Subsequently, the Applicant further attended a video-recorded interview with customs officers. The Applicant said he made a living by working as a casual decoration worker at a daily wage of $400 to $500.  At times he also worked in restaurants. He said he owed his friends several thousand dollars because he did not have a job and money to buy meals.

23.According to the Applicant, he was collecting goods for “Ko Lo” in the vicinity of Tai Nam Street and Kweilin Street at about 11 a.m. on 8 October 2014.  He said he did not know “Ko Lo’s” phone number or his full name and (he) seldom contacted him. If necessary, “Ko Lo” would look for him in places like McDonald’s, Lung Wai (transliteration) Video Game Centre or cyber bars and so on.

24.As indicated by the Applicant, on about25 September 2014, “Ko Lo” indicated that he did not know how to use a computer, and (he) gave him three numbers, asking him to check on the Internet how TNT, a courier company, had been shipping the goods. Following the instructions of “Ko Lo”, the Applicant took screen shots of the shipment records and handed them to “Ko Lo” for him to see. The Applicant said he did not know the English address(es) shown in the records.

25.The Applicant further said that three or four days before the day in question, “Ko Lo” wanted the Applicant to collect the goods. “Ko Lo” gave him two mobile phones, instructed him to collect the goods as soon as he received his call, and gave him $500 as travelling expenses. “Ko Lo” also instructed him to receive the goods with “Ho Tsai” (transliteration). As a result, he said to Tang he would have several hundred dollars as a reward after receiving the goods.

26.The Applicant also stated that “Ko Lo” indicated when somebody called him and wanted him to receive the goods, he did not have to bother about the recipient’s name. “Ko Lo” did not explain to him what to do in case the recipient’s name was different. But he said the three parcels would arrive at the same time. The Applicant stated expressly that he did not know the recipient John Lam or the other two recipients of the goods.  

27.The Applicant claimed that at around 9 a.m. in the morning of 8 October 2014, a staff member of the courier company called and told him that the goods had arrived and wanted to arrange with him the time and place for receiving the goods. Consequently, the Applicant called Tang and told him to receive the goods and, upon receipt of the goods, to pass the parcel(s) to him, and then he would take it/them to “Ko Lo”.  The Applicant said Tang knew he was in the vicinity of Kweilin Street and Tai Nam Street. And after Tang had received the parcel(s), he would take it/them to the McDonald’s in Camp Street and handed it/them to him.  But as it turned out, he was arrested by the Customs officer(s).  

28.The Applicant gave explanations with respect to the call records on those phones in his possession and the $20,000-odd in his current account. The Applicant said at first he was suspicious of the postal parcels involved in the case, but “Ko Lo” said nobody would send dangerous drugs by post, and if the Applicant was not free, he could ask somebody else to receive it/them on (his) behalf. So he did not think there was anything wrong and acted according to “Ko Lo’s” instructions.

The Stance and Evidence of the Applicant

29.The Applicant’s stance is that he did not tell Tang that the postal parcel contained a dangerous drug. It is Tang who falsely accused him by telling lies in order to have his sentence reduced.  The Applicant agreed that he did instruct Tang to receive the postal parcel, but he knew nothing about the postal parcel containing a dangerous drug. When he gave evidence in his defence, he enumerated his work experience. He said he had worked in the assembly-disassembly business, as a courier contractor, and in a skewer shop, but at the time the case occurred, he was unemployed, only doing casual work. The Applicant said he came to know “Ko Lo” when he was doing an assembly-disassembly job at the Convention and Exhibition Centre, and got to know him well when hanging out with him in video game centres.  He also said he came to know Tang in June or July 2014 and had had meals and played video games with him since. 

30.The Applicant said that on 25 September 2014, “Ko Lo” asked him if he knew how to access the Internet, and asked him to track on the Internet the whereabouts of some goods for him. So “Ko Lo” gave him the waybill for the three parcels of goods, telling him to take screen shots for him to see. He said that at the time “Ko Lo” did not ask him to receive the postal parcels on (his) behalf. But between 3 and 6 October 2014, “Ko Lo” said at the McDonald’s that as he had to work and was not free, he asked the Applicant to receive the postal parcels on (his) behalf.  When the Applicant asked “Ko Lo” what the parcels were, “Ko Lo” said they were not guns, stoves or dangerous drugs, and they would arrive in Hong Kong within one or two days. At that time, in addition to a piece of paper containing the recipient’s/recipients’ address(es) and name(s), “Ko Lo” also gave him two mobile phones and $500 as travelling expenses. But the Applicant indicated to “Ko Lo” at once that he had to go back to Mainland China and would get somebody to receive it/them on (his) behalf.

31.The Applicant stated he went back to the Mainland on 7 October 2014 and the following day, i.e. at around 9 a.m. on 8 October 2014 he returned to Hong Kong. The Applicant insisted that after he passed through immigration control, he received a call from the courier company saying that the goods would be delivered to No. 333 Tai Nam Street. Therefore, he called Tang, asking if he could receive (it/ them) on (his) behalf. Tang said he was in Sham Shui Po and could get there in 15 minutes. Consequently, the Applicant informed Tang the address to receive the goods. The Applicant insisted that he did not go to Sham Shui Po MTR station to meet up with Tang. Instead he went home to change his clothes.

32.The Applicant went on to say that at around 11 a.m. the same day he received a call from the courier company saying that (the courier) was about to arrive at the address for delivery. Then he kept  in contact with the staff member of the courier company and Tang. Eventually he learnt that Tang had made contact with the courier. The Applicant insisted that during that time he did not instruct Tang to enter the building or ask Tang to open the other gate of the building to let him in.

33.The Applicant stated that while he was walking towards No. 333 Tai Nam Street, he was arrested by the Customs officer(s), who found only 3 mobile phones during the search. It was he who took the initiative to reveal the other two mobile phones to the Customs officer(s).

34.The Applicant denied that he conspired with other people to “traffic in dangerous drugs”. He did not know the postal parcel involved in the case contained dangerous drugs. He denied that he talked with Tang in early September about receiving the postal parcel(s). The Applicant claimed that he was set up by “Ko Lo”.

35.The Applicant agreed that he should have had sufficient time to receive the postal parcel himself, but the courier said there was not enough time. So he instructed Tang to receive it and he went home to change his clothes instead. The Applicant explained the reason why he went to Tai Nam Street was that he had promised to take the postal parcel to McDonald’s and hand (it) to “Ko Lo”. He insisted that he did not know the postal parcel contained something illegal.

The Trial Judge’s Direction to Jury

36.The trial judge stated expressly to the jury that the evidence against the Applicant came mainly from Tang, and that Tang’s evidence was not entirely safe, so they had to consider Tang’s evidence carefully.  The trial judge also listed the defects in Tang’s evidence.

37.The trial judge did analyze with care the prosecution’s evidence relating to time in order to test the Applicant’s version that he did not have sufficient time to receive the postal parcel and so (he) had to instruct Tang to receive it.

38.The trial judge reminded the jury that if they thought the Applicant’s evidence was true or possibly true, they were obliged to find him not guilty. The trial judge emphasized that even if the jury rejected the Applicant’s entire evidence, they still had to be sure that the Applicant knew the postal parcel contained dangerous drugs when he instructed Tang to receive (it). But the trial judge emphasized that the prosecution only needed to prove that the Applicant knew what the postal parcel contained was a dangerous drug, but it did not need to prove that he knew what kind of dangerous drug it was.

Grounds of Appeal

39.Mr Osmond Lam, counsel for the Applicant, advanced several grounds of appeal. Mr Lam submitted that since the Applicant was charged with conspiring with other people to “traffic in a dangerous drug”, (ie) cocaine, the prosecution must prove that the Applicant knew what the postal parcel contained was cocaine and not other dangerous drugs. However, in his direction to the jury, the trial judge wrongly directed the jury by saying that they only needed to consider whether the Applicant knew the postal parcel contained a dangerous drug and that the prosecution did not need to prove that the Applicant knew what the postal parcel contained was cocaine. 

40.Mr Lam submitted that the prosecution’s evidence might show that the Applicant conspired with other people to “traffic in” other dangerous drugs or other contraband, but the trial judge erred in omitting to point out that possibility to the jury.

41.Mr Lam pointed out that the trial judge erred in not expressing clearly to the jury that Tang’s guilty plea could not be regarded as evidence to convict the Applicant. Mr. Lam also emphasized the inherent improbabilities of Tang’s evidence, but the trial judge did not point out those inherent improbabilities to the jury. Accordingly, the guilty verdict against the Applicant was unsafe.

42.Mr Lam submitted that Tang’s evidence had its own inherent improbabilities for the following reasons:

(1)   The Applicant did not have to tell Tang what the postal parcel contained;

(2)   Telling Tang that the postal parcel contained a dangerous drug would increase the likelihood of the Applicant being arrested, thus putting himself in jeopardy;

(3)   As the Applicant and Tang were not close and long-standing friends, it was impossible for the Applicant to believe that in case things went wrong, Tang would not testify against him. 

In the light of the above factors, Mr Lam submitted that the conviction of the Applicant was unsafe.

Discussion

43.Mr Lam argued that the prosecution must prove that the Applicant knew the postal parcel contained cocaine; it is not sufficient to merely prove that he knew the postal contained a dangerous drug.  He cited R v Siracusa (1990) 90 Cr App R 340 to support his position.

44.In Siracusa,the prosecution accused the defendant of knowingly particpating in a fraudulent evasion or attempt at evasion of a prohibition or restriction for the time being in force with respect to goods under or by virtue of section 3(1) of the Misuse of Drugs Act 1971 and section 170(2)(b) of the Customs and Excise Management Act 1979.

45.Under the Customs and Excise Management Act 1979, cannabis was specified as a “Class B drug” whereas heroin was classified as a “Class A drug”, and the maximum penalties for evasion with respect to cannabis and heroin were different.

46.In Siracusa,the first charge was concerned with the conspiracy to evade the (prohibition/restriction) with respect to heroin and the second charge with the conspiracy to evade the (prohibition/ restriction) with respect to cannabis. But the trial judge did not state clearly in his direction to the jury that when they considered the first charge, they had to be sure that the offence which the defendants participated in involved heroin.

47.One of the grounds of appeal was that the trial judge did not express clearly in his direction to the jury that the prosecution was obliged to prove that the agreement to the conspiracy was the importation of heroin.

48.What Mr Lam relied upon is the following remark of O’Connor LJ at page 350 of the judgment in Siracusa: 

“The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence. An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.

We have come to the conclusion that if the prosecution charge a conspiracy to contravene section 170(2) of the Customs and Excise Management Act by the importation of heroin, then the prosecution must prove that the agreed course of conduct was the importation of heroin.  This is because the essence of the crime of conspiracy is the agreement and in simple terms, you do not prove an agreement to import heroin by proving an agreement to import cannabis.”    

49.First of all, this Court points out that the two charges in Siracusa were that (the defendants) knowingly imported two different substances listed in the Customs and Excise Management Act 1979, namely, heroin (a Class Adrug) and cannabis (a Class B drug).

50.The Customs and Excise Management Act 1979 classified cannabis and heroin and also dealt with the penalties for the offences of importation of cannabis and importation of heroin separately.

51.Under that Act, the importation of cannabis and the importation of heroin were two different offences. This Court cannot disregard that the offences referred to in that Act must be committed knowingly. The penalty for conspiracy to import cannabis is lighter than that for conspiracy to import heroin. Accordingly, if the defendant was charged with conspiracy to import heroin and he thought what was to be imported is cannabis, the charge against him would not stand. However, the situation would be totally different if he was charged with conspiracy to import cannabis, but he thought what was to be imported was heroin.  It was in the above context that O’Connor LJ said in obiter dicta that the proof of an agreement to import cannabis was not sufficient proof of an agreement to import heroin.

52.The decision in Siracusa was canvassed by the Court of Criminal Appeals of the UK in R v Patel and others（unreported, 7^th August 1991, [1991] Lexis Citation 1588）. Woolf LJ pointed out at page 10 of the judgment： 

“… by referring to a single drug in the Particulars of Offence the prosecution are identifying which Class of drug is involved. If heroin is specified, a Class A or hard drug; if Cannabis is specified, a Class B or soft drug. The naming of the drug is a material allegation because it makes clear the gravity of the offence which is the objective of the conspiracy.”

53.Woolf LJ also gave a brief statement of the legal principle involved as follows:

“(i) … if the jury consider that, although he agreed to join the conspiracy, he may have mistakenly believed that the conspiracy related to a different drug from that named in the Particulars of Offence and that different drug is of a Class, the maximum punishment in relation to which (for the substantive offence) is less than that for drugs of the Class specified in the Particulars of Offence. Thus is (sic) a person enters into a conspiracy believing it concerns cannabis (Class B) he will not be guilty of an offence charging him with being a party to a conspiracy concerning heroin (Class A). In the reverse situation he would however be guilty, since if he mistakenly thought that he was joining a conspiracy to commit a graver offence his mistake would not be as to a material feature of the offence - in other words he believed the drug involved was heroin when in fact it was cannabis.

(ii) a defendant will be guilty if the offence if he joined the conspiracy alleged in the mistake belief it involved a drug which, while different from, belongs to the same Class as the drug named in the Particular of Offence.

(iii) a defendant will be guilty if he joins the conspiracy knowing that prohibited drugs are involved but without knowing what drugs are involved.  In such a situation he would in fact have agreed to be a party to the conspiracy irrespective of what drugs are involved.”

54.The decision in Siracusa was based entirely on the wording and interpretation of the relevant Acts of the United Kingdom. The legal principle laid down in that case does not apply to the present case.

55.In the present case, the Applicant was charged with conspiracy to traffic in a dangerous drug.  Although it was stated in the Particulars of Offence that the Applicant conspired (with others) to traffic in cocaine, the nature of the dangerous drug was not the material averment of the offence or the statement in question.

56.The Dangerous Drugs Ordinance (Cap 134) does not deal with trafficking in cocaine and trafficking in other drugs separately. Nor does the Dangerous Drugs Ordinance specify “knowingly” as a material averment of the offence as in the case of that Act.  Where a defendant participated in a conspiracy to “traffic in a dangerous drug”, as long as the offence involves “dangerous drugs” referred to in the Dangerous Drugs Ordinance, he is guilty regardless of whether he knows the exact kind of “dangerous drug” involved.  To convict a defendant of “trafficking in a dangerous drug”, the prosecution only needs to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, without having to prove that he knows exactly what kind of dangerous drug it is (See R v Tam Chun Fai [1994] 2 HKC 397 and HKSAR v Chui Chi Wai [1999] 3 HKLRD 841).

57.Section 159A(1)(a) of the Crimes Ordinance (Cap 200) stipulates：

“(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a)   will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement;”

In short, if the act which the conspirators agree to carry out materialises, that act will constitute a particular offence, and the offence of conspiracy will be established. Where the offence is “trafficking in a dangerous drug”, as mentioned above, as long as the offender knows the thing involved in the trafficking is a dangerous drug, that is sufficient to establish guilt. Whether or not he knows the exact kind of dangerous drug involved is not amaterial averment. Accordingly, under section 159A(1)(a) of the Crimes Ordinance, for the offence of conspiracy to “traffic in a dangerous drug”, whether or not the defendant knows the exact kind of dangerous drug involved is not a material averment, nor is the prosecution required to prove that the defendant knows the dangerous drug involved is the specific one stated in the indictment.

58.Also, this Court does not see any logical basis for adopting a different approach in cases of conspiracy to “traffic in dangerous drugs” from that in cases of “trafficking in dangerous drugs”.  The contention that in cases of conspiracy to “traffic in dangerous drugs” it is not sufficient for the prosecution only to prove that the defendant knows the thing involved in the trafficking is a dangerous drug, but the prosecution must also prove that the defendant knows the exact kind of dangerous drug involved is neither practicable nor convincing.

59.For the above reasons, this Court is of the view that the question at issue in a case of conspiracy to “traffic in a dangerous drug” is whether the defendant enters into an agreement with others to unlawfully “traffic in a dangerous drug”. It is not a defence to contend that the defendant does not know the exact kind of dangerous drug involved. As long as the defendant knows the thing involved is a dangerous drug specified in the Dangerous Drugs Ordinance, he has committed the offence of conspiracy to “traffic in a dangerous drug”.  Accordingly, this Court is of the view that the direction the trial judge gave to the jury was correct.

60.Furthermore, the Applicant’s defence was that he did not know in the first place what the postal parcel contained was a dangerous drug, but this was obviously rejected by the jury. According to Tang’s evidence, the Applicant made it clear to him that the dangerous drug involved was “coke” and that receiving the postal parcel involved would be rewarded with $100,000. There was nothing in the present case to show that the Applicant conspired with other people to “traffic in” other kinds of dangerous drug. The Applicant’s version was that he did not know in the first place that the postal parcel contained any dangerous drug. And “Ko Lo” said to him that the postal parcel was not a gun, a stove or a dangerous drug. The main point that Mr. Lam advanced does not apply to the present case at all. Even if the Applicant conspired with other people to “traffic in” other kinds of dangerous drug, this was not a valid defence either.

61.There was no evidence in the present case to show that the Applicant conspired with other people to “traffic in” other contraband, which were not dangerous drugs.  There was no basis for the trial judge to point out to the jury that the Applicant might conspire with other people to import other contraband.  To direct the jury to consider the possibility of the Applicant conspiring with other people to “traffic in” other contraband would only confuse and not assist the jury in deciding the matters in dispute in the case.

62.Mr Lam contended that Tang’s evidence had its own inherent improbabilities. His position was that Tang’s evidence was not credible, but the trial judge did not draw the attention of the jury to the unsafe aspects of Tang’s evidence.   

63.According to Tang’s evidence, he trusted the Applicant.  And the Applicant suggested to Tang that he only needed to feign ignorance if he was arrested.

64.The Applicant asked Tang to receive the postal parcel on his behalf and indicated that he would give Tang $50,000 as a reward.  The Applicant must have thought that giving Tang a big reward would make Tang act according to his instructions.  Anyway, he had to tell Tang that the postal parcel contained “coke”, otherwise it would be impossible for him to give (him) a reward of $50,000 to induce Tang to act on his instructions.  The Applicant must also have calculated the risk he would face in getting Tang to act in accordance with his instructions, such risk was also inevitable.

65.This Court does not agree with Mr Lam that Tang’s evidence has its own inherent improbabilities which showed that his evidence could not be true. 

66.Whether Tang lied in order to falsely accuse the Applicant was a factual issue which should be left to the jury to decide.  The jury was aware of the position of the Defence. If Tang’s evidence against the Applicant had the inherent improbabilities as claimed by the Defence, the jury must have rejected his evidence. That the jury found the Applicant guilty shows that they rejected the Defence’s version and that they considered Tang an honest and reliable witness. There is no basis for this Court to negate the jury’s decision on a matter of fact.

67.Tang had already admitted an offence of trafficking in a dangerous drug in one of the postal parcels before he testified against the Applicant. The trial judge stated clearly to the jury in his direction that Tang had already admitted the said offence and was awaiting sentence, and that one of the purposes of his testifying against the Applicant was to obtain a further reduction of his sentence.  The trial judge also pointed out to the jury that the Secretary for Justice had granted Tang immunity that if Tang told the truth in giving evidence, the Prosecution would not charge him with the other offences relating to the present case.

68.In the circumstances mentioned above, whether the trial judge was obliged to inform the jury that Tang had already admitted an offence of “trafficking in a dangerous drug” would presumably not affect their verdict as to whether or not the Applicant was guilty. And whether the trial judge was obliged to remind the jury that the Prosecution was required to prove its accusation against the Applicant so that they were sure that the Applicant had committed the offence with which he was charged would not have been affected even if Tang had not admitted the offence of “trafficking in a dangerous drug”. 

69.Mr Lam cited HKSAR v Lo Wai Ming [2007] 3 HKLRD 191 and argued that the trial judge was obliged to remind the jury that Tang had already admitted an offence and that this had nothing to do with whether or not the Applicant was guilty. First of all, this Court should point out that the defendant in Lo Wai Ming’s casewas alleged to have received a bag of dangerous drug involved in the case from a taxi passenger [L].  Having been arrested and cautioned, the defendant indicated that the bag of dangerous drug was not his, but was handed to him by his boss [L]; but he knew the bag of dangerous drug was “ice”.  In his evidence for the defence, the defendant denied that he had made the above confession and emphasized that he did not admit having knowledge or possession of the dangerous drug involved in the case during the video-recorded interview, nor did anyone ask him about the confession which the prosecution alleged he had made. But the video-recorded interview referred to above showed that the defendant admitted that at the place where he was arrested, the police officer(s) seized a plastic bag on L’s person; he also admitted that he had $32,000 in cash on him. The defendant said in his evidence that it was he who arranged to meet L at the scene of the case, which was different from what he said during the video-recorded interview, namely, he just happened to see L there coincidentally. In the cross-examination of the defendant, the prosecution pointed out that the defendant did not call L to give evidence, because he knew Lhad already admitted that the two of them “trafficked in the dangerous drug” together.

70.The Court of Appeal pointed out that in the above circumstances, the jury might have been influenced by the overwhelming allegation that L had admitted that he and the defendant “trafficked in the dangerous drug” together. However, the trial judge did not direct the jury to ignore L’s admission of the offence pointed out by the prosecution or to ignore the statement he made to the police. This constituted an irregularity in the legal proceedings, mainly because the prosecution informed the jury of an admission made by an accomplice without calling that accomplice to testify in court, thus depriving the defendant of the chance to cross-examine him in order to test the allegation that they committed the offence together.

71.In the present case, Tang did testify against the Applicant in court.  The Defence had ample opportunities to question Tang as to whether he had conspired with the Applicant to commit the offence, so as to assist the jury in making a finding on Tang’s credibility and reliability.

72.The Applicant admitted that he did instruct Tang to receive the postal parcel on the day in question, but he did not know that it contained a dangerous drug.  He was set up by “Ko Lo”.  His version was different from Tang’s. The main issue the jury had to decide was whether Tang’s evidence against the Applicant was true. In arriving at the said verdict, the jury must have considered the other factors, including the fact that the Applicant had many phones on him when he was arrested; the records of his telephone communications with the Customs officer before the present case occurred; the fact that the phone(s) had photos of tracking the delivery of the three postal parcels involved in the case; among the items seized from the Applicant was a piece/pieces of paper showing the air waybill number and the names of the recipients of the goods; given that the Applicant was in the vicinity  when he was arrested, he had time to personally receive the postal parcel involved, and he could arrange with the Customs officer disguised as a courier the time and place of the delivery and so on.

73.The trial judge did inform the jury in his directions that Tang had admitted an offence of trafficking in a dangerous drug. But in the present case, it was wholly impossible for the jury to have drawn any inference or reached a verdict unfavourable to the Applicant on the basis that Tang had admitted an offence. 

74.The trial judge warned the jury repeatedly that they had to consider Tang’s evidence with caution because he was a person who would lie according to the situation and also was extremely selfish. The trial judge also emphasized to the jury that if the Applicant’s version was true or possibly true, they had to find the Applicant not guilty; and that even if they did not believe the Applicant, they still had to consider whether the evidence of the Prosecution was sufficient to cause them to be sure that the Applicant knew what the postal parcel contained was a dangerous drug.

75.We consider that so far as the background of the present case is concerned, the trial judge needed not tell the jury that Tang had admitted an offence of “trafficking in a dangerous drug” and that this had nothing to do with whether or not the Applicant is guilty.  (Even if) the trial judge did not give the above direction, it would not have constituted an irregularity in legal proceedings nor affected the safety of the conviction.

76.We would like to reiterate the following comment the Court of Appeal made in HKSAR v Chan Kam Chiu (unreported CACC 227/2006) on the same issue: 

“23.   The accomplice witness, Yeung, was originally charged with the same trafficking offence as the first and second applicants.  He pleaded guilty to that offence, agreeing to testify for the prosecution.  The fact that he had pleaded guilty and that he would only be sentenced after he had testified was known to the jury.  The jury were correctly warned to approach his testimony with caution on the basis that he therefore had reason to falsify or exaggerate his testimony.

24.   On behalf of the second applicant, however, it was submitted that the judge should have warned the jury against the danger of concluding that the first and second applicants must themselves be guilty because Yeung had pleaded guilty to committing the offence of trafficking with them.

25.   We do not agree.  Directions to a jury – other than the most fundamental, for example, the burden of proof – must be tailored to assist the jury to determine the case before them.  In the present case, such a direction would have been superfluous, even confusing.”

77.We are of the view that the observation of the Court of Appeal in Chan Kam Chiu is entirely applicable to the present case.

78.Having carefully considered the grounds of appeal advanced by Mr. Lam, we are of the view that none of them has merit.

79.The guilty verdict against the Applicant was safe.  Accordingly, we dismiss the Applicant’s application for leave to appeal against conviction and uphold the original decision.

Osmond Lam and Ernest Yuen, instructed by Or & Lau, Solicitors, for the Applicant

Ned Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.