HKSAR v. Lam Shun Choi (藍順財)

FAMC No 65 of 2018

[2019] HKCFA 14

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 65 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO 186 OF 2017)

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REASONS FOR DETERMINATION

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Mr Justice Cheung PJ (for the Appeal Committee):

1.At the conclusion of the hearing, we dismissed this application for leave to appeal.  We now give our reasons. 

2.The applicant was convicted after trial before a judge and a jury of one count of trafficking in dangerous drugs, namely 49.56 grammes of a crystalline solid containing 48.82 grammes of methamphetamine hydrochloride (“Ice”) and 1.08 grammes of cannabis in herbal form.  He was sentenced to imprisonment of 9 years and 7 months.[1] 

3.His appeal to the Court of Appeal was unsuccessful.[2] He sought leave to appeal to this court on the substantial and grave injustice limb.

4.The case against the applicant was straightforward.  On 10 January 2016 at around 6 am, police officers were patrolling on Kadoorie Avenue near Argyle Street in Kowloon when they noticed a stationary private car by the roadside with its engine running.  The applicant was in the driver’s seat with a female (Madam Lam) sitting in the front passenger seat.  They were asked by a police officer to alight from the vehicle for questioning.  Nothing suspicious was found on their bodies. However, another police officer found under the driver’s seat a yellow paper box containing a resealable plastic bag and a black plastic box, in which the dangerous drugs described above were found.  The applicant denied knowledge of the yellow paper box and its contents.  The issues at trial were whether the applicant had knowledge of the existence of the drugs, and whether he possessed the drugs for trafficking purpose.

5.The prosecution evidence at trial was that when the applicant was being questioned after alighting the vehicle, he looked nervous, his body was shaking and he prevaricated.  After the dangerous drugs were found beneath   the driver’s seat and he was confronted about the discovery, the applicant did not respond but only lowered his head with his body still shaking. 

6.The applicant gave evidence at trial.  He explained that he had just purchased the vehicle from someone 4 days before and intended to refurbish the vehicle for resale. At the time of the transfer of the vehicle, he had just taken a perfunctory look at the exterior and interior of the vehicle from outside.  He had no knowledge of the dangerous drugs found inside the car.  The car had been kept for him by a friend who was responsible for finding a potential buyer.  He did not know whether anyone had used the car before.  On the night of 9 January 2016, he had dinner with Madam Lam, who expressed her wish to go for a ride.  The applicant did not have a driving licence, and the vehicle licence of the car had expired.  However, in order to impress Madam Lam, he told her that he had a car and a driving licence, so he could take her for a ride in the vehicle, which he did.  In evidence, the applicant agreed that when questioned by the police, he was a bit nervous because he was driving without a licence and the vehicle licence had expired.  He denied that he was shaking or prevaricating at the time.

7.In support of the application for leave to appeal, counsel argued that the judge[3] misdirected the jury on the inference that could be drawn from the prosecution evidence, if accepted, that the applicant appeared to be nervous, his body was shaking, and he prevaricated when questioned by the police.  The judge had directed that if the jury considered the reason for the applicant’s reaction was or might be because he was driving without a licence and the vehicle licence had expired, it should not be used as evidence against him regarding knowledge of the drugs.  It was only if they were sure that his reaction had nothing to do with his not having a driving licence and the vehicle licence having expired that they could use it as evidence to infer knowledge.  Counsel contended that the direction ruled out other possible innocent explanations for his reaction, such as the applicant’s fear that his wife might learn from the incident that he had spent the night with Madam Lam.  After clarification from the bench, counsel confined his argument to that part of the prosecution case which his client denied, that is, his body was shaking and he was prevaricating.  As for the applicant’s nervousness, for which he had given an explanation, counsel accepted that the judge could not be criticised for not directing the jury to consider any possible innocent explanations other than the one that the applicant had given.

8.We agree with the Court of Appeal that on the facts of the present case, there is nothing in this contention.[4] Whether it be nervousness, bodily shaking or prevarication, it was all about the applicant’s overall reaction at the time, as to which he had given one specific explanation at trial, that is, that he had been driving without a licence and the vehicle licence of the car had expired.  He did not mention any other possible innocent explanations for his reaction.  In particular, he did not suggest that he was apprehensive that his wife might somehow find out from the police that he had spent the night with Madam Lam or that that was the reason for his reaction.  Nor was any such apprehension, or any other possible innocent explanations, suggested to the jury in defence counsel’s final speech.

9.As was pointed out in R v Chong Kin Cheong:[5]

“… it is not the judge’s task when considering the facts put before him to imagine possible defences of which there is no evidence. By the same token it is not his task - nor that of a jury - to speculate upon the absence of possible evidence. His duty was to try the case just on the evidence before him.”

10.On the facts of this case, to require the judge to draw a distinction in his directions to the jury between nervousness on the one hand and bodily shaking and prevarication on the other in terms of whether there could be other possible innocent explanations for the applicant’s reaction would only serve to confuse the jury. Counsel’s arguments to the contrary were not reasonably arguable.  Nor was there any arguable departure from established norms.

11.Counsel also contended that the judge’s direction to the jury[6] in relation to the applicant’s “behaviour”[7] of driving without a valid driving licence and without third party insurance in order to please Madam Lam was equivocal, in that it might go to the question of propensity and was impermissible. 

12.In our view, the judge’s directions were unambiguous.  He did not ask the jury to consider the applicant’s willingness to drive without a driving licence and when the vehicle’s licence had expired in order to please Madam Lam as indicating propensity.  On the contrary, he made it clear that there was no direct relationship between the applicant’s commission of the traffic-related offences and whether he would traffic in a dangerous drug.[8]  There was no room for misunderstanding by the jury.  This ground was wholly unarguable.

13.For these reasons, the application was dismissed.

Mr H Y Wong, instructed by Ip, Kwan & Co, assigned by the Director of Legal Aid, for the applicant

Mr David Chan, SADPP (Ag) and Miss Stella Lo, PP, of the Department of Justice, for the respondent