HKSAR v. Wong Chun Yau
Read the full judgment text of CACC 118/2019 on BabelCite. This Court of Appeal judgment was delivered on 16 June 2020.
1. The applicant was charged with a single count of trafficking in a dangerous drug, namely 13.19 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was convicted by the verdict of the jury after trial before Alex Lee J (“the judge”)and sentenced to 6 years and 11 months’ imprisonment. Subsequently he filed a Notice of Application for Leave to Appeal
Cites 2 cases
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CACC 118/2019 [2020] HKCA 519 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 118 OF 2019 (ON APPEAL FROM HCCC 128 OF 2017) ------------------------
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__________________________ REASONS FOR JUDGMENT __________________________ 1.The applicant was charged with a single count of trafficking in a dangerous drug, namely 13.19 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was convicted by the verdict of the jury after trial before Alex Lee J (“the judge”)and sentenced to 6 years and 11 months’ imprisonment. Subsequently he filed a Notice of Application for Leave to Appeal (“Form XI”) against his conviction only. 2.He was unrepresented at the hearing of the application. At the hearing of the application I granted leave to appeal and granted the applicant an Appeal Aid Certificate so that he could have legal representation at his appeal. These are my reasons for so doing. The Indictment 3.The count in the indictment pleaded that on 18 September 2016 the applicant unlawfully trafficked in the 12.93 grammes of Ice at Tai Wo Estate Bus Terminus, Po Nga Road, Tai Po. The Ice was in fact concealed in a cigarette packet that had been placed in the door handle of a car, next to the driver’s seat, which the applicant was driving. The particulars of the charge made no mention of any other person. However, it subsequently became known that another person was involved with these drugs. This person’s name is Mok Shu Ming (“Mok”). The involvement of Mok Shu Ming 4.The clerk’s log from the proceedings in the Court of First Instance reveals that on 22 November 2017 Mr Shaun Kelly, counsel on fiat for the prosecution, informed Deputy High Court Judge Lugar-Mawson that the Director of Legal Aid had informed the Department of Justice that a person in Stanley Prison had admitted ownership of the drugs. Mr Kelly applied for and obtained an adjournment of the applicant’s case. 5.The applicant’s case was subsequently listed for trial before the judge but in the interim Mok was separately charged with unlawfully trafficking in the Ice which is the subject of the applicant’s count and on 29 November 2018 he pleaded guilty to this charge. Mok’s charge pleaded that he committed this offence together with the applicant, but this was known only to the judge, not the jury. Pre-trial discussions concerning Mok 6.At a pre-trial review held on 8 January 2019, Ms Liza Yip, who appeared for the applicant, informed the judge that Mok would give evidence for the applicant and that the prosecution intended to amend the indictment so that the count would plead that the applicant committed the offence “together with Mok Shu-ming”. The court noted that the prosecution case was one of joint possession of the Ice by the applicant and Mok. The court directed that the trial would start on 12 March 2019. 7.On 4 March 2019 Mr Kelly forwarded to the judge a copy of his amended Prosecution Case and Amended Indictment. The amended Prosecution Case concluded with the following two paragraphs:
8.On 11 March 2019 the judge’s clerk wrote to Mr Kelly informing him that the judge queried how Mr Kelly was intending to prove Mok’s involvement and what the attitude of the defence was to whatever he was proposing. 9.The same day Mr Kelly replied to the judge’s queries informing him that Mok would not be a prosecution witness and that he was now of the view that Mok’s plea was irrelevant and therefore not admissible. However, he foreshadowed the possibility that the defence may wish Mok’s plea to be adduced before the jury. 10.On the next day, 12 March 2019, the judge discussed with Mr Kelly how he would be presenting the prosecution case. At first Mr Kelly said it would be as a joint enterprise between the applicant and Mok but then conceded there was no evidential basis for such a case. Mr Kelly then agreed that he would have to present a case of the applicant acting on his own with no mention being made of Mok or his guilty plea. 11.Ms Yip then informed the court that she had instructions to call Mok but no final decision had been made to do so. 12.Mr Kelly decided not to pursue his amendment of the indictment in which Mok was to be particularised as an unindicted co‑accused. 13.At the conclusion of the hearing the judge directed Ms Yip to inform Mr Kelly by 5 pm that day whether she would be calling Mok in the defence case. In the morning of the following day Ms Yip informed the court that she would not be calling Mok. Later that morning, Mr Kelly opened his case to the jury and in doing so made no mention of Mok. The prosecution case 14.At about 0230 hours in the morning of 18 September 2016, the applicant was seen sitting on the driver’s seat of a private car which was illegally parked at the bus stop area of Tai Wo Estate on Po Nga Road, which was a restricted area. It was an admitted fact that this car was registered in the name of the applicant’s mother and was lent to him for his personal use. 15.PW1, a police sergeant who was patrolling in the vicinity, approached the car and made some preliminary enquiries with the applicant. Suspecting that the applicant was in possession of a dangerous drug, PW1 summonsed his colleagues to the scene to provide assistance. 16.PW2, the exhibits officer in the case, searched the private car and found a cigarette packet that had been placed in the door handle of the car next to the driver seat. Inside the cigarette packet, there were six transparent resealable plastic bags and also another transparent resealable plastic bag containing six other resealable plastic bags, which contained the Ice particularised in the charge. The applicant was arrested by PW1 and remained silent under caution. 17.It was an admitted fact that the estimated value of the Ice in question, if sold at street level, would be about HK$4,788. Amongst all the seized exhibits only the cigarette packet was sent for fingerprint examination but no marks of value could be found on it. After the prosecution closed its case 18.The prosecution closed its case in the afternoon of 14 March 2019 and with no contrary submission from the defence the judge ruled that the applicant had a case to answer. The court then adjourned the case to the following day. 19.On that day it became clear that Ms Yip was negotiating with Mr Kelly the drafting of a second set of Admitted Facts and these related to Mok’s guilty plea in respect of the drugs that were the subject of the applicant’s count. Mr Kelly was of the view that Mok’s plea of guilty was irrelevant to the case against the applicant. 20.The relevance of Mok’s guilty plea then became the subject of submissions by counsel to the judge as Mr Kelly was not willing to agree to the admission of evidence of Mok’s plea without a ruling by the judge. 21.The judge then ruled that this evidence was admissible for the limited purpose of showing that Mok’s guilty plea was consistent with the defence case that the Ice belonged to somebody else. The actual ruling was orally delivered and was as follows:
22.In view of that ruling Mr Kelly and Mis Yip were given some time to discuss and prepare another set of admitted facts, reflecting Mok’s interaction with the applicant pending his case and his guilty plea. This was subsequently signed and submitted to the judge. 23.The judge anticipated that the admission into evidence of Mok’s guilty pleato trafficking in the same batch of drugs would affect the way the prosecution would present its case and how Mr Kelly would cross-examine the applicant. Mr Kelly confirmed that this would be so in the following exchange with the judge:
24.The case was then stood down to enable Ms Yip to advise the applicanton how the prosecution case would be conducted, which might have a bearing on his decision whether to give evidence. Ms Yip subsequently confirmed with the judge that the applicant was fully aware of the situation and elected to give evidence. Accordingly, the second set of Admitted Facts (which became “Exhibit D2”) were formally produced to the court by Ms Yip and explained by the judgeto the jury. Thereafter, the applicant gave evidence and he did not complete his testimony until Monday 18 March 2019, after which counsel delivered their closing speeches. The defence case 25.The defence case commenced with the production of Exhibit D2 and in this document the following admissions were made:
26.Exhibit D2 concluded with the following paragraph:
27.The applicant then testified. He said he knew nothing about the Ice and that it actually belonged to his friend, Mok. He said that in the evening of 17 September 2016, he gave Mok a ride to Tai Wo Estate upon Mok’s request. He said at that time Mok chose to sit on the back seat of his vehicle rather than on the front seat. After he pulled over at the bus stop and Mok had alighted from his car, he noticed the cigarette packet lying on the floor of the car in front of the back seat. Thinking that it belonged to Mok, he picked it up and placed it in the door handle next to the driver’s seat. He did not open the packet to check its contents. 28.At trial, it was in dispute as to whether the applicant in fact witnessed the car search being done and was shown with P1 and its contents. It was his case that he did not realise Ice had been found in his car until he appeared before the duty officer at Tai Po Police Station. As soon as he realised this he immediately informed PW3, the investigating officer of the case, that the Ice might belong to Mok. The judge’s discussions with counsel before closing speeches 29.Mr Kelly’s cross-examination of the applicant prompted the judge to confirm with Mr Kelly that one of the bases of liability on which he was inviting the jury to convict was joint enterprise. Ms Yip queried if that could be done in light of the fact that the count was not pleaded as a joint enterprise crime with Mok. The judge responded by saying to Ms Yip that the prosecution could not originally name Mok in the count because, at the beginning of the trial, there was no evidence of his involvement. The judge continued:
30.However, he said he would want to hear from counsel on whether there was a sufficient evidential basis for joint enterprise. In this respect he noted that there was evidence from the applicant that Mok was with him the evening of his arrest and that the package belonged to Mok so that:
31.Ms Yip then queried the fairness of the prosecution now being allowed to change its case to one of joint enterprise. This led to the judge wondering whether the prosecution could present a case of joint possession rather than joint enterprise. Mr Kelly indicated his agreement with this approach. Because this became the way the judge directed the jury it is important to set out the judge’s exchange with counsel as illuminating his thinking on the matter:
The prosecution’s closing speech 32.In his closing speech Mr Kelly presented the prosecution speech in the following way:
and later he said:
33.He then returned to the two alternative forms of the applicant’s possession of the Ice when he discussed what was meant by trafficking in a dangerous drug. He said:
The defence closing speech 34.Ms Yip highlighted the issue for the defence in the following way:
The judge’s discussions with counsel after closing speeches 35.In this discussion Mr Kelly expressed the hope that he had put his case in a way which limited the allegation against the applicant to one of joint possession without engaging joint enterprise as a basis of liability.[11] The judge then disclosed how he proposed to direct the jury and both counsel agreed with his intended directions.[12] The judge’s summing-up 36.In the course of his summing-up the judge directed the jury as follows:
After explaining the concept of possession, the judge said:
When dealing with the Admitted Facts relating to Mok, he said:
The applicant’s grounds of appeal 37.The applicant was unpresented in the present hearing. In his Form XI filed on 16 April 2019, he made eight complaints and in his affirmation dated 21 May 2020, he made eleven complaints, none of which, in my view, provided a reasonably arguable ground of appeal. Consideration 38.Although I found none of the applicant’s complaints provided a reasonably arguable ground of appeal, I was concerned that it was recognised by the judge and the prosecutor that the prosecution case could not be run on the basis of joint enterprise and that a conviction on this basis was not available as there was no evidence to support it. To meet this situation the judge then introduced the concept of joint possession, with the agreement by both counsel, and directed the jury that this was one of the bases on which they could convict the applicant. 39.It is, in my view, reasonably arguable that, in the circumstances of this case, the distinction between joint possession and joint enterprise is an artificial one and is, in reality, a distinction without a difference. Here, there was not just an allegation of joint possession but also an allegation of joint mens rea ie Mok and the applicant both intended to possess the Ice for the purpose of trafficking in it. If there was insufficient evidence to justify leaving joint enterprise as a basis for conviction then it is reasonably arguable that there was insufficient evidence for this alternative form of liability, described as “joint possession”, to be left to the jury as it could be said that it is just joint enterprise under another name. If that is so then the consequence is that the prosecution was able to get in by the back door, what it could not get in through the front door. 40.On the assumption that joint possession was available on the evidence then the question arises of whether the jury was correctly directed on what they must find. In this respect the judgment of the Court of Appeal in HKSAR v Li Jin[16] is relevant. The passage setting out the relevant legal principles can be found at paragraph 18 of the judgment where Line J, in giving the judgment of the court, said:
41.I am also concerned whether there was evidence of successive possession. My concern stems from the bare nature of the admitted fact in respect of Mok’s plea. This admitted fact makes no mention of when Mok was trafficking in this Ice, when he had possession of it, the circumstances surrounding his possession of it or how he had passed it to the applicant before the applicant’s arrest that evening. 42.In order for the prosecution to rely on either joint or successive possession they would inevitably have to ask the jury to disbelieve the applicant in his denials of complicity but to accept that part of his evidence concerning the presence of Mok in the car earlier in the evening. This would require careful direction from the judge on how they could reach such a verdict and such directions are not obviously apparent from the judge’s summing-up. 43.I do note that the judge did explain to the jury that what they had to be sure of was that the applicant possessed the Ice and intended to traffic in it. However, whether these other directions of the judge can overcome the difficulties posed by him leaving to the jury the two alternative forms of possession as a basis for conviction, is something that only the Court of Appeal can address. 44.In a nutshell my concerns can be summarised as:
Disposition 45.For these reasons I granted the applicant leave to appeal his conviction and an Appeal Aid Certificate, in order to assist him in arguing his appeal before the Court of Appeal. However, I do not intend to limit the grounds his future counsel may wish to advance on his behalf, in addition to the matters I have identified.
Ms Margaret Lau SPP, of the Department of Justice, for the respondent The applicant was acting in person [1] Appeal Bundle, page 153F-P. [2] Appeal Bundle, pages 155E-156P. [3] Appeal Bundle, page 9 at [9]. [4] Appeal Bundle, page 159L-M. [5] Appeal Bundle, page 160N. [6] Appeal Bundle, page 162C-164U. [7] Appeal Bundle, page 96Q-T. [8] Appeal Bundle, page 99O-U. [9] Appeal Bundle, page 102B-E. [10] Appeal Bundle, page 104K-N. [11] Appeal Bundle, page 116E-H. [12] Appeal Bundle, pages 116I-118C. [13] Appeal Bundle, page 17K-S. [14] Appeal Bundle, pages 19I-J, 20C-E. [15] Appeal Bundle, pages 26Q-27I. [16] [2010] 4 HKLRD 614 [17] Ibid, 619 at [18]. | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACC 118/2019