HKSAR v. Ko Wai Kit and Another

HCCC 252/2019

[2020] HKCFI 3002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 252 OF 2019

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BETWEEN

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Before: Deputy High Court Judge Bruce, SC in Court

Dates of Hearing: 13 and 14 January 2020

Date of Reasons for Ruling: 1 December 2020

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REASONS FOR RULING:

No Case to Answer

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SUBMISSION OF NO CASE TO ANSWER

1.The 1st accused and 2nd accused both submit that they have no case to answer.  At the conclusion of the hearing of the submission of no case to answer, on 14 January 2020, I ruled that:

“I am satisfied that upon the basis that the underlying basis for the prosecution case is that the accused were dealing with or dealing in a dangerous drug, and applying the recognised test, the evidence in respect of each of the two accused is such that a properly directed jury could, may or might convict that accused. Accordingly, I hold that in respect of both accused there is a case to answer. For the avoidance of any doubt about the matter, the evidence which is admissible against each of the two accused is different and I considered the case of the two accused individually. I will provide reasons in writing for my decision in due course.”

2.In relation to the undertaking given to provide reasons, these are those reasons.

EVIDENCE AND CASE FOR THE PROSECUTION

Overview of the case for the prosecution

3.The case for the prosecution is that the two accused in their own individual ways were dealing in or dealing with a dangerous drug knowing that is what they were dealing with or dealing in and they did so for the purpose of unlawful trafficking as opposed to for the purpose of self-consumption. 

Evidence in support of the case for the prosecution

4.On 25 July 2018, at 3:37 am at the DHL Central Asia Hub at the Hong Kong International Airport and operations agent of DHL handed over a parcel to customs officers for examination.^[1]  The package appeared according to the documents attached to it to have been sent from Malaysia.  The parcel had an airway bill AWB 539-04874262.  The package was declared to contain a “Gloria Baby Chair”.  The consignee was given as a Mr Tony Frank at an address in Yuen Long.^[2]

5.The parcel raised the suspicions of customs officers and was examined and tests were performed.  The tests revealed that within the metal frames of the baby chair, there was some methamphetamine hydrochloride.  Indeed, in due course the contents of the metal frames of the baby chair were analysed by the Government Chemist and in the result, it was found to contain 796.2 g of a crystalline solid containing 776.3 g of methamphetamine hydrochloride.  These tests were conducted on 10 August 2018.^[3]  It was determined by the Customs & Excise Service to conduct a controlled delivery.

6.In fact, four controlled deliveries were attempted between 25 July 2018 and 6 August 2018, all of which were unsuccessful.^[4]  The 5th controlled delivery and the events leading up to that controlled delivery brought about the arrest of 1st accused and 2nd accused.  The four unsuccessful controlled delivery operations are, nevertheless, very important components in the narrative leading up to the controlled delivery in which the first and then 2nd accused were arrested.

7.The first attempt to deliver the parcel occurred on 25 July 2018 between 4 pm and 6 pm.  Two officers, one of whom was  CO 16118, disguised themselves as DHL officers by wearing the uniform of DHL.  They used an unmarked goods vehicle and not one using the legend DHL.  Apparently, the officers were not able to borrow a DHL-marked truck.

8.In any event, CO 06111 and his colleague CO 16118 went to Sheung Che Tsuen, Fan Kam Road in Kam Tin.  The locality that they went to was the result of their interpretation of the curiously-written address for the consignee written on the airway bill which is P 24.^[5] In this attempted delivery, CO 06111 knocked on the door several times but there was no response.  This operation was terminated at 6 pm.

9.The second controlled delivery operation occurred on              26 July 2018 when CO 06111 and his colleague went to the same address.  He told the court that he tried to call the number (6385 7974) mentioned on the airway bill as being the number for the consignee.  The first call got through but nobody answered.  Shortly after that the officer received a call back and his own mobile phone displayed the number 6385794.  He told the court that the caller was a male speaking in English.  The officer said that he was a DHL staff member and the male said that he was Tony Frank and he gave the airway bill number 5603926506 which was the airway bill number on the parcel in question.  The male enquired about the progress of delivery and expressed anxiety the parcel be delivered as soon as possible.

10.The officer described the caller purporting to be Tony Frank as speaking non-fluent English.  He told the person who claimed to be Tony Frank that he was in the vicinity and wearing a DHL uniform.  The person claiming to be Mr Frank claimed that he was not at home and asked him to wait.  The officer said he waited.  Another call was received and claimed he was Tony Frank and asked them to continue to wait.  The officer attempted a further call which was connected and then immediately hung up.  The officer said that he continued to wait and after there were no further calls and following one attempt to connect with the number given for the consignee did not connect, they gave up the operation for that day.  During the course of this second attempt to deliver parcel, CO 06111 used a phone number supplied to him by the Customs & Excise Service. The number was 9340 9788.

11.On 30 July 2018, the third attempt was made to deliver the parcel.  This occurred at around 11 am.  The same officer that is, CO 06111 called the number on the airway bill that is 6385 7974.  The officer used the same mobile phone number that he had used in the previous attempted delivery, that is, 9340 9788.  In any event, when this officer called the number given in the airway bill, the phone was answered and a male who said he was not the consignee, was not Tony Frank and therefore would not receive the parcel.^[6]

12.Later on that day, that is 30 July 2018 at 2:43 pm, DHL received a call from a person who claimed to be the consignor and that person instructed DHL to change the name and details of the consignee.^[7] The person who claimed to be the consignor instructed DHL to send the parcel to a person named Delex Armstrong, Flat D, 8th Floor, 25 Kin Tark Street, Yuen Long.  A new contact number was given as 5584 8426.  At 5:45 pm, as a result of this contact received from DHL, CO 06111 and his colleague went to the address given and at the address of woman answered the door and said that a person bearing the name Delex Armstrong did not live there.  This attempt was also terminated.

13.On 3 August 2018, DHL received a further request to change the consignee of the parcel.  The request came from person claiming to be the consignor.  The address given was Room 1114, Wang Sin House, Cheung Wang Estate, Liu To Road, Tsing Yi (“Room 1114”).  The name of the new consignee was given as Ko Wai Kit the same name as 1st accused.  The new contact number was given as 6538 9957.^[8] The number 6538 9957 was not a number admitted to be used by 1st accused.

14.On 6 August 2018, the next attempt was made by the Customs & Excise Service to deliver the parcel.  The same officers, again wearing DHL uniforms, attended at 10:15 am.  Somebody knocked on the door and no one answered. CO 06111 called the number given, that is 6538 9957.  By this stage, the officer was using another mobile number supplied by the Customs & Excise Service, that is, 5126 8648.  A male answered 6538 9957 and claimed to be Ko Wai Kit. (The accused Ko Wai Kit is a female.) The officer said that he was from DHL.  The male who made the call to the officer call related to him the relevant airway bill number.  That male spoke in English.  CO 06111 observed that the English of this male was not fluent.  He requested the officer to wait in the Tsing Yi area.  This was significant because while the male asked the officer where he was, the officer did not answer the question and this carries with it the possible implication that the male knew where the parcel was to be delivered.

15.A further call was made to the customs officer’s number displaying the number 6538 9957 and the caller, a male speaking non-fluent English asked the officer to wait in the Tsing Yi area.  Further calls were made and in one of them the male who answered said, once again, that he was Ko Wai Kit.  In the result, there was no delivery.

16.Later in the afternoon of 6 August 2018, an English-speaking male called the DHL service hotline, claiming to be the consignee and asked for the parcel to be delivered between 11 am and 1 pm on 7 August 2018.^[9]

17.The next day, that is 7 August 2018, a further attempted delivery was made.  It is noteworthy that no attempt was made to deliver between 11 am and 1 pm. (Inspector Chow, who was the officer-in-charge of the investigation - which included the controlled deliveries - testified that it was simply not possible to organise the deliveries for that time.)

18.It is an admitted fact that on 7 August 2018, a Cantonese- speaking female, claiming herself to be the new consignee, that is Ko Wai Kit, contacted the DHL service hotline.  The number that this person used was 5984 1513.^[10] That is 1st accused ‘s number.  Pausing there for a moment, it is also an admitted fact that DHL hotline number is 2400 3388.^[11]

19.Later on 7 August 2018, at about 5:15 pm, CO 06111 and his colleague went to the new consignee’s address at Room 1114.  The wooden door was not wholly closed so they banged on the metal gate.  They knocked on the door and 1st accused answered. CO 06111 said that he was from DHL and 1st accused said that she was Ko Wai Kit.  The officer asked her if she was expecting a DHL parcel and she said yes. He asked for the airway bill number and 1st accused showed an envelope with that number written on the back.^[12]  Also written on the back of the envelope was the DHL hotline number 2400 3388.  CO 06111 asked for the HKID card of 1st accused which she duly produced.  In the result, she signed a receipt which can be seen at exhibit P 26.  1st accused also signed on what is described as a delivery sheet that is P 25.  The name and identity card number of 1st accused and the word “Ko” appear on the delivery sheet.  Apparently 1st accused used “Ko” as her signature.  It is also noteworthy that exhibit P 25 in the left-hand column reveals two phone numbers.  The first one is 6538 9957 which had been used on 6 August 2018 to call about the time for delivery on 7 August 2018.  This was also the number that was given when the sender purported to change the consignee on 6 August.  

20.Once the documentation was completed, CO 16118 who was the colleague of CO 06111, handed the parcel to 1st accused which she took into her hands.  At that time, CO 06111 produced his warrant card and told her he was a Customs Officer.  1st accused was arrested. In the words of arrest, CO 06111 asserted simply that she had contravened the Dangerous Drugs Ordinance. 1st accused was cautioned and in response she said that she understood. She was then questioned.  She was asked whether the parcel belonged to her.  She said that it belonged to her friend who she initially named as “Gau Gor”.  The officer asked for the full name of this person and 1st accused said Hui Wai Kit.  The officer then asked 1st accused whether she had any idea what was in the parcel.  1st accused answered that she had no idea.  She was asked whether she would receive a reward to which she answered in the negative critically, she was asked what she would propose to do with the parcel and she said he was going to wait for Gau Gor to collect it.  It was common ground that what 1st accused said to the officers was inadmissible and could not be used against 2nd accused.

21.A search was made of 1st accused and a mobile phone was found. It is admitted that a Nokia mobile phone belonging to 1st accused was seized from her.  The number of that mobile phone is 5984 1513.  It is also admitted that the mobile phone has a WhatsApp social communication platform and the number used by 1st accused for that purpose was 9240 0390.^[13]

22.After the arrest of 1st accused other customs officers attended at the residence of 1st accused.  They discovered there was already a male thereby the name of Chan Kwok Fung.  It was said that he was the younger brother of 1st accused.  It was said that he had nothing to do with the parcel.  In the result, Mr Chan was taken by other customs officers to a vehicle they had parked nearby.  Enquiries were made of him and he was released in due course.  It has never been suggested that he had anything to do with the parcel.

23.Following the enquiries and the discovery of Mr Chan, CO 06111 wrote down in his notebook a post record of his dealings with 1st accused.  That was produced as exhibit P60.  The post record includes a record of 1st accused signing for the parcel and checking the airway bill.  The post record also includes a record of the exchange of words between the 1st accused on arrests and caution and what followed that.  The relevant questions and answers are as follows:

“Question: Is the postal item yours?

Answer: It is not mine my friend asked me to receive it.

Question: What is the name of your friend?

Answer: Gau Gor.

Question: Do you have his full name?

Answer: Hui Wai Kit

Question: Have you received any reward?

Answer: No.

Question: What would you do after receiving the postal item?

Answer: I will wait for Gau Gor to come up here to get it.”

(A little later on in the post-record, questions were asked about Mr Chan to which reference was earlier made.  Nothing turns on this.) The post record was then read over to 1st accused and she was invited to read it herself.  She was asked whether she needed to alter, correct or add anything to the record.  Replied that there was no need. She added in her own handwriting the words:

“I, Ko Wai Kit, have read this record of interview […..]. It is an accurate record of questions asked and answers I provided.”

The post-record was then signed by all concerned. There is also an assertion written by 1st accused that she made post record of her own will.

24.A document known as a Notice to Persons in Custody was served on 1st accused. It is exhibit P 57.

25.By this time, Inspector Chow, the officer in charge of the case, had attended at Room 1114.  He was clearly interested in making a further controlled delivery.  He made enquiries of 1st accused including whether she was willing to assist the customs officers in this regard.  All of this was done under caution and a series of questions were then asked as follows:

“Question: Whose parcel is it?

Answer: It is not mine. Gau Gor asked me to collect it.

Question: When did Gau Gor ask you to collect it?

Answer: In late July, he asked me to give my name and address to him. He also said that he did not have a fixed residence and asked me to let him use my place to receive parcel.

Question: Did Gau Gor tell you what this parcel is?

Answer: No. Yesterday he gave me the goods number by WhatsApp.

Question: What was the arrangement after you have received the parcel?

Answer: He will come up to find me later.

Question: Do you get any remuneration for receiving the parcel?

Answer No. I have known him for a long time.

Question: Do you know Gau Gor’s full name?

Answer: I know. It is Hui Wai Kit.”

Following this series of questions, 1st accused agreed to participate in a further controlled delivery.  The record of this arrangement was admitted into evidence as exhibit P 59.

26.In relation to the conduct of the case of 1st accused, it is noteworthy that the brief cross-examination of the relevant prosecution witnesses was brief.  Perhaps of most significance was the acceptance by CO 06111 and Inspector Chow that 1st accused was at all times cooperative.  The fact that she was prepared to take part in a further control delivery is cogent evidence of that fact.

27.The further controlled delivery was not effected.  Inspector Chow said that some planning is needed for such operations and before that could be done a further and highly significant event occurred: the arrival of 2nd accused.

28.Both Inspector Chow and CO 1408 who was the arresting officer of 2nd accused testified that they were both inside Room 1114.  That was about 8:15 pm.  There is also evidence which is admitted^[14] of two journeys of a person fitting the description and wearing clothes consistent with what 2nd accused was wearing when arrested which the jury could conclude was 2nd accused.  The first entry, which is recorded on CCTV is an entry on 7 August 2018.  We see the person fitting the description of 2nd accused entering the building in the morning and leaving the very early afternoon.  It is to be recalled that on 6 August 2018, that is, on the day before the delivery, an English-speaking male called the DHL service hotline claiming to be the consignee and asked for the parcel to be delivered between 11 am and 1 pm on 7 August 2018.  Given the description of the gender of the person who made the call, it is highly unlikely that the caller was 1st accused.

29.Inspector Chow and CO 1408 both said that the wooden door was not fully closed and they heard metal grill being opened.  CO 1408 was one of the officers who attended at the flat after the arrest of 1st accused. CO 1408 was assigned to be the arresting officer of such persons as may arrive.  It was clear from the testimony of CO 1408 that he did not know much about the case.

30.On the arrival of 2nd accused at the flat, he opened the wooden door.  The Inspector asked 1st accused who this person was and she answered Hui Wai Kit (which is, of course, the name of 2nd accused).  Following that, CO 1408 went forward and arrested 2nd accused.  He was arrested and was told that he was suspected of contravening the Dangerous Drugs Ordinance.  He was cautioned in the classical manner and indicated that he understood.  At that stage, CO 1408 brought 2nd accused inside the flat to ask him questions.  It was, apparently, somewhere near the bedroom.  He was asked for his name and he said “Hui Wai Kit”. 2nd accused was then asked why he came here, he said “I come to chitchat with my elder sister.”  The officer then asked 2nd accused what her name was.  He said “Ko Wai Kit”.  He was further asked why he came here he said that he had no place to go.

31.At the time of his entry, 2nd accused was carrying a backpack.  That was searched and two mobile phones were found in that backpack.  It is an admitted fact that the first of these mobile phones was an LG phone which was purple in colour and the phone number for that phone was     5981 1033.  That phone is exhibit P 37. The other mobile phone seized in the backpack of 2nd accused was a black coloured LG mobile phone which was a dual Sim card phone using the numbers 5519 5285 and 6488 2519.  This mobile phone is exhibit P 40.^[15]  Both the purple LG mobile phone and the black LG mobile phone had the social communication platform known as WhatsApp installed on them.

32.CO 1408 testified and it is an admitted fact that on 16 and 17 October 2019, the officer took what are known as screenshots of the mobile phone of 1st accused (that is, with the phone number 5984 1513 and the WhatsApp function using 9240 0390).  On those dates, CO 1408 also took screenshots of purple LG mobile phone and the black LG mobile phone which had been found in the backpack of 2nd accused.^[16]  It is also admitted that these three mobile phones were functioning properly and had not been improperly tampered with (there is a slight spelling mistake in the admitted facts in this regard) since their seizures on 7 August 2018 and at the time when these screenshot photographs were being taken, the mobile phones were also working properly.^[17]

33.A selection of screenshots from these mobile phones were tendered in evidence.  They may be seen in the bundle supplied to the jury.

34.CO 1408 testified as to the process of taking the screenshots of the various phones.  His testimony was given without objection and was not the subject of anything other than a very brief cross-examination on behalf of 2nd accused.  Significantly, the perhaps critical question asked by 2nd accused of this officer was that he was unable to say whether any of the assertions in the screenshots which have been exhibited were true.

35.A good deal of the focus of the examination of the mobile phones through the screenshots presented to the court was focused on the entries in the WhatsApp section of the phone.  Those were the subject of a vigorous challenge as to their admissibility at an earlier time and I ruled that they were admissible.  However, it is clear from the screenshots that there is a good deal more to the screenshots than just the WhatsApp material.  This is why it is significant that there is an admitted fact as to the fact that at the time of the seizures by the Customs & Excise officers, that both mobile phones were functioning properly and that there was no improper tampering with the mobile phones and that they were functioning properly at the time that the screenshots were taken.  I interpret that admission as including admission that the functions on the mobile phone such as WhatsApp operating or functioning properly.

36.CO 1408 then took the court through the various screenshots of the three mobile phones.

37.In relation to the Nokia phone of 1st accused, CO 1408 identified the home screen on page 1.^[18] On pages 3 and then 4-19 we see the call register of that phone.  In that phone’s call register, CO 1408 pointed out on page 3 reveals that calls had been received from the phone numbers 6488 2519 (which is one of the dual Sim card numbers in the black LG phone found in the backpack of 2nd accused) and 5126 8648.  5126 8648 was a number used by CO 06111 on 6 and 7 August 2018.  On page 4, there is record of contact with the DHL hotline number. This is also seen on page 5 on two occasions and on pages 8 and 9.  This call register also reveals contact with the second of the two SIM cards on the black LG phone.  That number is 6488 2519.  We see that on page 4 of the call register of 1st accused.  We also see telephone contact with Ah Gau numerous times including on pages 3, 4, 6, 8, 9, 10, 11, 12, 15, 17, 18 and 19.  There is also in this call record records of contacts with Gau Gor which can be seen on pages 5, 6, 7, 8, 12, 13, 15, 16, 17 and 18.

38.It is noteworthy perhaps that on page 8 there is a call to the DHL hotline and shortly after that there are 3 calls between 1st accused and Ah Gau.  On page 9 we see 3 calls between 1st accused and Ah Gau followed by almost immediately by two calls to a number used by CO 06111 on 6 and 7 August.  Following the telephone contact with the number used by CO 06111, there is further telephone contact shortly after that with Ah Gau followed by three telephone contacts with the number used by CO 06111.

39.It is also perhaps noteworthy that the telephone contact between 1st accused and Gau Gor is shortly before a contact with the DHL hotline is followed by a telephone contact with Gau Gor followed once again by a telephone contact with DHL hotline. That can be seen on page 5.

40.1st accused said in her statements to the officers of the Customs & Excise Service that she passed on her details to Gau Gor in, as she put it, late July.  That is not evidence against 2nd accused.  However, in the screen shots of the WhatsApp messages, there is a transmission which is on 1st accused ‘s mobile phone - see this at screenshot 106 and 107 - which is exactly her name and address.  In the screenshots taken from one of the mobile phones seized from the 2nd accused contains the same information.  You can see that at screenshots 62 and 63.  That image can be seen on the printout of the screenshots of one of the Sim cards found in the black LG mobile phone.  In this regard, attention is drawn to pages 389 and 390.  The image also appears at pages 392, 393, 394 and 395 and the identity card of 2nd accused appears at pages 396 and 397 and 398.

41.Someone armed with the information of 1st accused communicated with DHL on 3 August 2018.   There is no evidence that the person who contacted DHL and gave that information was either 1st accused or 2nd accused and there is no evidence as to how that information got into the hands of whoever it was that contacted DHL to effect a change as to the address, phone number and name of the consignee.  What is known is that on that day the phone number given by the person who contacted DHL purporting to be the sender of the parcel was not the phone number of 1st accused.  1st accused ‘s number was admitted to be 5984 1513.  The number given by the caller claiming to be the consignor to DHL was 6538 9957.  That number is also not one of the numbers admitted to be the numbers of the 2 mobile phones found in the possession of 2nd accused.

INDICTMENT

42.Both accused face a single count of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Cap 134.

PRINCIPLES

TEST FOR CASE TO ANSWER

43.The principles which govern the determination of whether or not there is a case to answer are well-known.  They are, with respect, perhaps best articulated by the Court of Appeal in AG v Li Fook Shiu Ronald [1990] 1 HKC 1 where it was said of what is required of the Judge:^[19]

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future. R v Galbraith [1981] 1 WLR 1039 applied.

If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concluded that a jury could, may or might so be satisfied, he will rule against the submission or application.”

These principles have been widely regarded as articulating the same test as R v Galbraith [1981] 1 WLR 1039, 73 Cr App R 124.  That was articulated in HKSAR v Wu Wing Kit & Ye Fang (No 2) [2015] 3 HKLRD 533, §127.

44.These principles recognise the primacy of the jury as the tribunal of fact and recognise the high degree of respect which must be accorded to that primacy.  This is also articulated with unmistakable clarity in R v Galbraith (above).  The principles demand of the Judge a high degree of rigour in applying the principles perhaps particularly when determining that there is no case to answer.  The approach should as follows:^[20]

(1) It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt; it is not for the Judge to predict what the jury will find.

(2) If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.

(3) Questions of credibility and weight must, in all but exceptional cases, be determined by the jury.  For the purposes of argument, the [prosecution] case must be taken at its highest.

(4) Where the [prosecution] case depends on inferences, the focus is on whether the evidence, if accepted by the jury, establishes facts that are capable of supporting those inferences.  Whether those inferences should be drawn, or not, is also a matter for the jury.

This is not a case in which credibility is material except in the most minor and, for the purposes of these reasons, irrelevant way.

45.These principles involve no exercise of discretion.  If the state of the evidence falls short of the standards which I have articulated, bearing the manner in which the analysis must proceed, then there is only one conclusion: that there is no case to answer.  If it does not fall short in this manner, the case must proceed to the jury.

46.The nature of the evidence in this specific case is that essentially the primary facts are largely uncontroversial and the most important issue will be whether the jury can infer from those primary facts that the elements of the offence (as to which see below) in respect of each of the accused might be proved to the satisfaction of the jury.

ELEMENTS OF THE OFFENCE

47.Section 2 of the Dangerous Drugs Ordinance provides two definitions which are germane to the issues to be decided in this case. They are:

(1) “trafficking” (販運), in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and

(2) “traffic in a dangerous drug” (販運危險藥物) shall be construed accordingly;

48.The definition lists a number of acts which are considered to be trafficking.  In HKSAR v Lung Cheuk Tong [1999] 4 HKC 179, the Court of Appeal (Chan CJHC, Leong & Wong JJA) held that section 2 of the Dangerous Drugs Ordinance “included” rather than “was” certain acts.  The court observed that the legislation was meant to not only explain the meaning of “trafficking”, but to extend its meaning to cover some acts which would not be regarded as trafficking in the ordinary sense.  In order to understand the legal meaning of “trafficking”, one had to consider its ordinary meaning as well as the statutory definition.  That might arguably be true in relation to importing or exporting or possession for the purpose of trafficking, but many of the acts which are explicitly identified in the definition would come within any realistic definition of trafficking.  Further, some of the acts included in the definition could be said to overlap.  Perhaps the overriding sense that it be taken from this statutory definition is to leave the community in no doubt that the law takes a wide view of the notion of trafficking.

49.Further, in HKSAR v Akhemetzyanova [2012] 5 HKLRD 708 the Court of Appeal (Stock V-P, Lunn JA & McWalters J) held that many of the acts encompassed within the definition of “trafficking” in section 2 of the Dangerous Drugs Ordinance could be undertaken by a consumer of drugs and the definition is not intended to convert acts done by the ordinary consumer into acts of drug trafficking.  The Court held that acts such as storage of dangerous drugs or transportation of them may not be regarded as an act of trafficking unless accompanied with a further intention.  As the Court observed in HKSAR v Akhemetzyanova, what transforms that transporting or conveying of drugs or storage of the drugs into actual trafficking of the drugs the purpose for which the transportation or storage takes place.  It follows from that proposition that it is incumbent on a court of trial to identify with precision the act or acts (the latter being relevant where there is an overlap) said to constitute acts of trafficking in the instant case and whether there is an accompanying intention.^[21]

50.In HKSAR v Akhemetzyanova (above) considered what was meant by dealing in or with a dangerous drug. The Court observed: ^[22]“Whether a particular form of possessing a drug constitutes dealing with the drug would depend on the act involved and the purpose or objective of the act.”  As to the act involved, the Court said: ^[23]“Generally speaking, to constitute drug trafficking, the act of dealing with the drug must suggest that a third party is involved, for example, carrying or delivering the drug for another person.  Another type of trafficking is possessing a drug for the purpose of trafficking.  In this connection, the prosecution does not have to prove any act of dealing with the drug or other acts.  As long as the accused is proved to have possessed the drug and have had the intention and ability to use all or part of drug for trafficking purposes, then he is guilty of drug trafficking.”

51.The critical parts of the definition of trafficking which are relevant to this case are “otherwise dealing in or with the dangerous drug”.  

52.It is of assistance to examine the authorities to consider the scope of dealing in or dealing with a dangerous drug. In Wong Yin Yu v R [1972] HKLR 6, the appellant was found to have a locked room in her residence in which a large quantity of dangerous drugs was stored.  The Full Court (Huggins, McMullin & Pickering JJ) considered the meaning of ‘dealing in’ and ‘dealing with’; the court having accepted that ‘dealing with’ is not necessarily the same thing as ‘dealing in’:^[24]

“What amounts to a ‘dealing with’ dangerous drugs is not easy of definition but in a particular case it will generally be comparatively simple to say whether there has been a dealing with drugs or not. We agree with [Counsel for the appellant] that the offence of possession of dangerous drugs for the purpose of unlawful trafficking is not necessarily committed by every person who is guilty of unlawful possession: if it were, there would be no necessity for creating a distinct offence. It follows that a person who, having taken unlawful possession of dangerous drugs, has no intention other than to retain them indefinitely is not guilty of possession for the purpose of unlawful trafficking. Even if he intends to handle them from time to time in order to clean the room or to gain access to something which is obstructed by them, he does not thereby become guilty of the more serious offence.”

53.One example of the conduct encompassed in the phrase dealing in dangerous drugs is to be seen in R v Chan Kim Wing CACC 199/1988.  In that case, the Court of Appeal (Yang CJ, Silke VP and MacDougall J) held that the act of the appellant of being juxtaposed to another who had the drugs and about to take possession of those drugs was, as Silke VP put it, “Given that the evidence of the police officers was capable of belief, then their evidence was sufficient to show that at the very least a dealing in drugs which is part of the definition of the word ‘trafficking’.^[25] What is significant about the notion of dealing in identified by the Court of Appeal in that case is that it is not necessary that the person who is dealing in the dangerous drug be in possession of the drug or a container containing the drug.  In this connection, one goes back to the notion in HKSAR v Lung Cheuk Tong (above) that the concept of criminal liability for trafficking includes might include not specifically encompassed in the definition in section 2 of the Dangerous Drugs Ordinance.  In ordinary commercial life, many people deal in commodities and rights without ever physically touching or coming into possession of the thing in which they deal.  

54.The issues raised in this case are specifically germane to the position of 2nd accused in the present case because he was arrested before he could take possession of the DHL parcel.

55.As the authorities make plain, state of mind which must be proved in respect of an accused who is charged with trafficking upon the basis that he or she was dealing with or in a dangerous drug is that it was dealt with for the purpose of trafficking the drug to another or others.  There is no evidence that the quantity of drug was specifically known or that the quantity was known to either accused to be a large quantity.

56.The prosecution must prove that each accused intended to procure a dangerous drug or intended to deal in or with a dangerous drug. In this regard, it is not necessary to prove that the accused specifically intended to procure or otherwise deal in or with a specific dangerous drug: R v Tam Chun Fai [1994] 2 HKC 397, 401-402.

57.The accused on a charge of trafficking must be proved to have known that he was trafficking or intended to traffic in a dangerous drug: HKSAR v Mohammed Saleem [2009] 1 HKLRD 369, §36-38.^[26] Accordingly, in the case of both 1st accused and 2nd accused it must be proved that they intended to receive the parcel knowing that it contained a dangerous drug. It is not necessary for the prosecution to prove that the accused knew the specific nature of the drug.

Evidentiary aspects of the determination of a case to answer

58.Although it should go without saying, in determining whether there is a case to answer, it is necessary to use the evidence in the permitted manner.  This is of critical importance in this case because the WhatsApp material is an out-of-court assertion.  It may not be used to directly prove of the truth of what is asserted.  That does not prevent inferences being drawn from these out-of-court assertions: Walton v R (1989) 166 CLR 283, 38 A Crim R 276.^[27]

59.I have separately considered the case of each accused the evidence using only the evidence admissible against that accused.

ANALYSIS

60.The evidence adduced by the prosecution in the present case is clear and for the most part wholly uncontroversial.  It is well capable of belief by the jury.  There are no issues of credibility which are relevant to the determination of whether there is a case to answer.  The real issue is the conclusions to be reached in respect of both accused.

61.It is critical to bear in mind at all times that the parcel in question is no ordinary parcel.  It contains a dangerous drug valued at over $400,000.  Undoubtedly it was the desire of both the sender and the ultimate recipient in Hong Kong parcel be received without the involvement of law enforcement.  A reasonable reading of the first 3 attempted deliveries is that the intended Hong Kong recipient was not at any of the addresses given, but was intending to receive the parcel in the vicinity of but outside those addresses.  However, for some reason, given the obvious peril that the recipient would be in if the delivering agency happened to be, in reality law enforcement, it is, perhaps, understandable that there was an element of skittishness on the part of the recipient or recipients.

62.There was evidence given by the security manager of DHL that there is a parcel tracking system operated by that company so that dip into the parcel, armed with the airway bill number can track the progress of the parcel.  There is no evidence as to whether or not that facility was ever used and, if so, what information was displayed on the system.  However, it is abundantly clear that by the calls purporting to be the sender instructing the parcel to be variously sent to Delex Armstrong and finally Ko Wai Kit that those concerned with the “safe” delivery to the “right” hands in Hong Kong was aware that delivery was not proceeding as desired.

63.It is evident that by the time of the 4th and 5th delivery that those concerned with the illicit delivery of the parcel appreciated the need for the parcel to go to a real address with a real phone number and a real person to receive parcel.  Not only that, if that method was to be tried, those concerned with the illicit delivery needed to be sure that the real person to receive the parcel at the real address had not only to be a person with those qualifications but also sufficiently trustworthy to pass the parcel to the real intended recipients.  The person who actually physically received the parcel had to have the airway bill number to give to the DHL delivery person.  It goes without saying that delivering a parcel to a randomly selected person simply would not work.  

64.The involvement of 1st accused and 2nd accused appears to start some days before the actual delivery.  We see 1st accused sending address details which happen to be her address details to 2nd accused by WhatsApp communication.  We see her sending what appears to be her identity card details in the same way.  There is no evidence in the WhatsApp part of the communications between 1st accused and 2nd accused of any request to do that but given the frequent telephone contact we see as between the mobile phone of 1st accused and one or other of the mobile phones of 2nd accused, it would be open to the jury to infer that the request may have come through that means.  The one thing that is clear is that there is no WhatsApp request of that nature.

65.There is clear evidence that 2nd accused sent a series of numbers which just happened to be the DHL airway bill number to 1st accused. Clearly, 2nd accused must have got that information from somewhere.  Putting all of that together would entitle a jury to conclude that 2nd accused provided assistance the ultimate recipient of the parcel by nominating a trusted recipient and address.  Some control was retained by giving a phone number other than that admitted to be 1st accused’s. Even that had to be changed in relation to the delivery for 7 August 2018.  In providing the address and name of 1st accused as the place and person to deliver the parcel, 2nd accused was clearly providing a cutout to avoid any liability if there were law-enforcement problems.  It was neither his name nor address where the parcel was going to.

66.In addition to this, timing is absolutely critical.  It is to be recalled that there was a request on 6 August 2018 that the parcel be delivered between 11 am and 1 pm on 7 August 2018.  The person who made the request was a male - which would eliminate 1st accused.  The phone number given was not known to be a phone number of 1st accused nor 2nd accused.  It is not unreasonable to conclude that is not possible to prove to the criminal standard that the caller who made the request on the evening of the 6th for the delivery between 11 am and 1 pm on the 7th was 2nd accused.

67.However, what is of critical importance is that at about the time nominated delivery (11 am to 1 pm) on the 7th, 2nd accused turns up at the residence of 1st accused and is seen going in and out of the building in which that residence is situated and his image was captured in that regard by CCTV.  That is circumstantial evidence which the jury would be entitled conclude, puts 2nd accused as a person obviously anxious to receive the parcel.

68.Pausing there for a moment, on no occasion did 2nd accused ever admit that the mobile phones found in his backpack were his.  There is circumstantial evidence on the CCTV of his 2 journeys to the residence of 1st accused, which shows him using a mobile phone looking remarkably like that of the seized phones.  Of all of the inferences that the jury is likely to find the easiest to draw it is that the phones in the backpack seized from 2nd accused must be his phones.

69.In my judgement, the agreement by 1st accused to allow her name and her address (albeit, at least not initially, not her phone number) suggest she was a willing partner in this enterprise to receive the illicit package.  It is clear that her conduct as recorded on her own phone would suggest an anxiety to receive the parcel by her numerous calls to the DHL hotline which were each accompanied by numerous calls buy her to one or other of the numbers used by 2nd accused.  That carries with it the possible implication for the jury that not only was she highly anxious about the parcel, but also that she was providing information as to the state of play with respect to the parcel to 2nd accused.  If this was truly a baby chair and, most significantly, nothing else, it is difficult to see how the anxiety exhibited by the series of phone calls and changes of arrangement suggest other than knowledge of the illicit nature of the contents of the parcel.  Here is a woman who has agreed to receive a parcel from, apparently, a complete stranger and appears to have agreed in the context of consistent anxiety concerning its delivery.

70.In my judgement, it would be open to the jury to conclude that 1st accused was a party to the change of address and name.  It is open to the jury to conclude that this was at the instigation of 2nd accused and this is supported by the exchange of telephone and, more particularly WhatsApp messages preceding the delivery.  The real issue for the prosecution in relation to both of the accused is knowledge.  I am acutely aware that the conduct of 1st accused once she was intercepted by the customs officers is consistent with surprise on her part that she had been the party to a delivery of an illegal substance.  She consistently denies knowing what was in the parcel some evidence, but the more cogent evidence in relation to her is her almost immediate willingness to participate in a further controlled delivery.  That is not diminished by the fact that events overtook the controlled delivery as a result of 2nd accused turning up at her residence before that could be put in hand.  On the other hand, her conduct in lending both her name and her address to the receipt of a parcel is capable of supporting the inference that she knew perfectly well what was inside.  As already indicated, it is not necessary that she know it is methamphetamine hydrochloride.  All the prosecution has to prove is that she knew was dangerous drugs.  Given the quantity involved in the value and the circumstances she lent her name and address to the enterprise, an available inference for the jury to draw, if they were prepared to draw it, is the conclusion that she knew that there was dangerous drugs in the parcel was that she intended that receipt on her part to be for unlawful trafficking: in other words, to pass it on to somebody else as opposed to self-consumption.

71.I readily accept that there are other inferences which are capable of being drawn in favour of 1st accused.  The most obvious of these is that she was an innocent dupe grievously and sorely used by others.  However, in the circumstances, I think the jury could conclude that she was a knowing recipient of the parcel and she was by that act dealing in or dealing with a dangerous drug within the definition of trafficking in section 2 of the Dangerous Drugs Ordinance. In my view, although it is not perhaps the strongest circumstantial case that has ever been seen in these courts, applying the test which the law requires me to apply, I conclude that there is a case to answer against 1st accused.

72.In my judgement, the case against 2nd accused is a compelling circumstantial case.  In my judgement, the jury could readily conclude that 2nd accused was recruited to find a trustworthy recipient to receive the parcel.  I use the word “trustworthy” in the context I used in my earlier discussion, the difficulties facing those engaged in the illicit delivery into Hong Kong of this valuable (but dangerous) parcel.  He plainly enlisted 1st accused by obtaining from her, her address and name and identity card.  Having received that information, it was passed other persons who claiming to be the sender of the parcel, gave these details to DHL for ultimate delivery of the parcel.  2nd accused then passed to 1st accused the airway bill number of the parcel.  The jury could readily infer that he did not get this number by accident.  Whether he was the ultimate recipient or he was just a flunky whose job it was to obtain the parcel and pass it to others is of no moment.  What is critical is not so much that he passed the airway bill information on to 1st accused but that he had it in the first place.  That is capable of being viewed by the jury as evidence that he was vitally concerned in the delivery to a trustworthy place in Hong Kong of the parcel.  The fact that 2nd accused turned up at the residence of 1st accused not once but twice on the 7th and on both occasions he turned up were possible times for the delivery of the parcel is also strong circumstantial evidence, which put together with the other circumstances strongly suggests that he was vitally concerned in the delivery of the parcel and to this effect, instigated 1st accused to achieve this.  Applying the recognised test outlined above, I am of the view that the jury could accept that 2nd accused was dealing in dangerous drugs. In the event that the jury concluded that this was his intention, the circumstances are also redolent of him intending to do so for unlawful trafficking.

73.Accordingly, I ruled that there was a case to answer in relation to both accused.  Looking a little bit forward, although it is not strictly necessary for the determination of whether or not there is a case to answer, it seems to me that in the summing up, it would not be helpful for the jury to embark on a long list of circumstances which might be characterised as dealing in or dealing with a dangerous drug.  What I propose to do, subject to consultation with counsel, is simply direct the jury that if they were sure that one or other or both of these accused were doing the prosecution says they were doing then they were dealing in or dealing with.  I also do not think it appropriate to strictly delineate between dealing with and dealing in separate concepts.  It seems to me that both conceptually and practically there is substantial overlap between the concepts and so I do not propose to make such a distinction.  Indeed, given that it least the case for 1st accused as I understand it is focused solely on whether she knew there were to be drugs in the parcel, fine distinctions between dealing in and dealing with seem to me to be not important.  The case for 2nd accused as I understand to be is that he denies being involved in the arrangements for the parcel to be sent to 1st accused - he relies in this regard on his assertion under caution that he was only there to chat with his friend - the distinction, to the extent there is one, between the 2 concepts does not seem to be of great importance.  I will direct jury accordingly.

Mr CHEUNG Kam-shing, Adonis, Counsel on fiat for DOJ / HKSAR, for Prosecutions

Ms CHAN Man-yee, Cannise, instructed by Cheung & Liu, assigned by D.L.A., for the 1^st Accused: KO Wai-kit

Mr WONG Chi-wai, Philip, instructed by Krishnan & Tsang, assigned by D.L.A., for the 2^nd Accused: HUI Wai-kit