HKSAR v. Lo Pui Yi Cat (羅佩怡)

FAMC No. 2 of 2019

[2019] HKCFA 43

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 78 OF 2016)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal at the conclusion of the hearing and indicated that we would hand down our reasons for doing so in due course, which we now do.

2.The applicant and her husband were arrested by police in a hotel room where dangerous drugs were found.  They were each charged with one count of trafficking in a dangerous drug (count 1) and possession of apparatus fit and intended for the inhalation of a dangerous drug (count 2).  The applicant was convicted of the trafficking charge but acquitted of the charge on count 2.  Her husband (D1 at trial) was convicted of both.

3.The main issue in the trial at the District Court was whether there was sufficient evidence to convict on the trafficking charge.  Neither the applicant nor her husband gave or adduced any evidence at trial.  They were jointly represented and it was submitted on their behalf that the evidence was insufficient for the trial judge to draw the only reasonable inference that they were guilty as charged.

4.The following facts were not in dispute.  Three re-sealable plastic bags were found on the bedside table, one contained a small quantity of cocaine (0.2g) and two contained ice (1.01g in total), as well as a glass bottle fitted with a glass tube.  A black plastic bag was found on the false ceiling above the bed in which there were 43 small re-sealable bags containing cocaine weighing an aggregate of 8.68g.  When the police entered the room, D1 was bare-chested.  He remained in custody after his arrest and a urine sample taken four days after his arrest tested positive for amphetamine.  Cash of HK$48,526.90 in banknotes and coins was found on the applicant.

5.The trial judge recognised that the prosecution case rested on circumstantial evidence but recorded that he reached his conclusions “on the cumulative effects of all the evidence combined together”.[1]

6.The trial judge accepted the evidence of the hotel cleaning lady that she would have cleaned the room after the previous occupants had vacated.  He therefore found that the drugs and glass bottle had not been left behind before the applicant and her husband occupied the room.  The quantity of rubbish led the judge to find they had stayed there for some time.  Based on the positive drug test, the judge was satisfied the applicant’s husband was a user of ice and that he possessed the glass bottle for the purpose of inhaling ice.

7.The judge was satisfied the bag on the bedside table was from the black plastic bag found above the bed since that on the bedside table was of the same size and type as the small bags of cocaine in the black plastic bag.  That black plastic bag was easily visible in the hotel room when looking up at the ceiling.  The judge therefore found that the two defendants knew about the existence of the 43 bags of cocaine in the black plastic bag.  The judge was satisfied, from the way the cocaine was packaged, the absence of evidence that either defendant was a user of cocaine, the quantity of cocaine and where it was found, that it was intended for sale and that, given the cash found on the applicant, that both defendants were acting in concert to deal in cocaine.

8.Before us, counsel for the applicant, Mr Joseph Tse SC,[2] has mounted the same argument that was mounted at trial, namely that there was insufficient evidence to convict the applicant of the trafficking charge.  He focused on two specific inferences drawn by the trial judge, namely: (i) the inference that the applicant had knowledge of the cocaine in the ceiling storage space by merely finding that she had knowledge of the existence of the black bag and the presence of one packet of cocaine on the bedside table; and (ii) the inference that, with knowledge of the cocaine, the purpose of the applicant possessing a large amount of cash was to provide change to purchasers of the drugs.  It was his submission that, in drawing those inferences without evidential basis, there was a departure from an accepted norm leading to substantial and grave injustice.

9.It is a long established principle that the Court of Final Appeal does not operate to review convictions on the unsafe and unsatisfactory ground, which is the task of the intermediate appellate court: So Yiu Fung v HKSAR (1999) 2 HKCFAR 539 at p.543F.  The applicant nevertheless now invites this Court to grant leave to appeal in order precisely to test the safety of her conviction. 

10.Despite Mr Tse’s able arguments, we are not persuaded that there was an insufficient evidential basis on which the judge drew the inferences that the applicant was jointly in possession of the black bag containing the smaller bags of cocaine and that she was acting in concert with her husband to sell the cocaine. 

11.Contrary to the submission made on behalf of the applicant that there is no presumption of knowledge “as we used to have under the Dangerous Drugs Ordinance”,[3] sections 47(1) and (2) of that ordinance[4] do provide that a person proved or presumed to have had: (i) anything containing a dangerous drug in his physical possession shall, until the contrary is proved, be presumed to have had such drug in his possession; and (ii) a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.  In HKSAR v Hung Chan Wa,[5] sections 47(1) and (2) were given a remedial interpretation by treating the burdens of proof as creating an evidential onus. 

12.In the present case, neither defendant testified and it was not suggested, on behalf of the applicant, that the drugs belonged only to her husband.  The prosecution case was entirely circumstantial but this was recognised by the judge and he properly applied the principle in Teper v R [1952] AC 480 at p.489 that, in such a case, he must be sure that there were no other co-existing circumstances which would weaken or destroy the inference.  Here, the presence of the applicant and her husband in the hotel room, in which drugs were in plain sight, together with the black bag also in plain sight containing the smaller bags of cocaine in quantities apparently prepared for sale and the source of the small bag of cocaine on the bedside table, together with the unexplained presence of a relatively large sum of cash in the possession of the applicant in those circumstances were, in our view, a sufficient evidential basis for the inferences drawn by the judge.  The suggestion, advanced on behalf of the applicant, that “the cash might have been profits from past drug transactions”[6] would merely serve to strengthen the inference drawn by the judge rather than to undermine it.

13.To grant leave to appeal in the circumstances would be to invite the Court to re-try the facts of the case, an exercise which the Appeal Committee has repeatedly said is inappropriate.  Leave to appeal on the substantial and grave injustice ground is for rare and exceptional cases: see Zeng Liang Xin v HKSAR (1997-98) 1 HKCFAR 12 at pp.22J-23A, HKSAR v Sham Man Wai (2014) 17 HKCFAR 825 at [7]-[8].

14.There is another dimension to this application for leave to appeal.  No challenge to the adequacy of the evidence to support the judge’s inferences was mounted in the Court of Appeal.  In that court, the applicant’s grounds of appeal were (i) that she did not have a fair trial as a result of having been jointly represented by the same legal team as her husband (D1), in circumstances where there was said to be a major and insurmountable conflict of interest between their respective defences, and (ii) that in view of the incompetence of her legal defence team in conducting the trial, the conviction was unsafe and unsatisfactory.  An original ground of appeal, that the conviction was unsafe and unsatisfactory based on the sufficiency of the evidence was abandoned by amendment. 

15.For this reason, McWalters JA, giving the Reasons for Judgment of the court, noted:

“No complaint is made by the appellant in respect of the sufficiency of the evidence which underlay the conviction or of the judge’s inferential reasoning process making use of that evidence to convict the appellant. The appellant’s only complaint is that she did not receive a fair trial by reason of the incompetence of the whole of her legal [team], namely the legal executive of her instructing solicitors firm, the instructing solicitor, and the counsel assigned by the Director of Legal Aid.”[7]

16.Although the Court’s reluctance to engage in a further assessment of the facts is usually stated to be based on the fact that the Court of Appeal has already conducted the exercise of reviewing the trial judge’s findings of fact,[8] it does not follow that because the Court of Appeal has not done so, the Appeal Committee will necessarily be more willing to grant leave to appeal to the full Court.  One must have regard to the reasons why the Court of Appeal has not conducted that review of the facts in order to determine whether the high threshold for the grant of leave imposed by the substantial and grave injustice ground is satisfied.  In the present case, the fact that the applicant and her legal advisers did not pursue the challenge to the trial judge’s findings is a relevant factor which weighs against granting leave to appeal to allow that challenge to be mounted at the eleventh hour in this Court.

17.For these reasons, we dismissed the application for leave to appeal.

Mr Joseph Tse SC and Mr Dixon Tse, instructed by Li & Partners, assigned by the Director of Legal Aid, for the Applicant

Mr Ned Lai SADPP and Ms Chan Sze-yan SPP, of the Department of Justice, for the Respondent