HKSAR v. Choi Chi Tak

[English Translation – 英譯本]

CACC 94/2019

[2020] HKCA 767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 94 OF 2019

(On Appeal From High Court Criminal Case No. 353 of 2018)

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Between

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Before:  Hon Mr Justice YEUNG, V-P, Hon Mr Justice PANG, JA and Hon Madam Justice PANG in Court

Date of Hearing:  9 September 2020

Date of Judgment:  24 September 2020

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J U D G M E N T

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Hon Madam Justice PANG (giving the judgment of the Court):

Background

1.The Applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong.  In the Particulars of Offence, it was alleged that the Applicant, on or around 8 January 2018, together with TSANG Yiu Fai (transliteration) and other persons unknown, unlawfully trafficked in 497 grammes of powder containing 424 grammes of ketamine.

2.The Applicant pleaded not guilty to the charge and the case was tried before Deputy High Court Judge Anthony Kwok (the Trial Judge) sitting with a jury.

3.On 28 February 2019, the jury found the Applicant guilty of the offence by a verdict of 5 to 2. On 15 March 2019, the Trial Judge sentenced the applicant to a term of imprisonment of eight years and eight months.

4.The Applicant now applies for leave to appeal against his conviction.

The Prosecution Case

5.During the trial, the prosecution case was, for the most part, including the Applicant’s video-recorded interview under caution, the Applicant’s phone communication records and the testimonies of five witnesses called by the prosecution, not disputed.

6.In short, on 5 January 2018, during an X-ray scan on express air cargo at the Customs import cargo examination compound of the Hong Kong International Airport, a Customs Officer found a suspicious parcel sent to Hong Kong from Thailand transiting through Singapore.  On the same day, the Customs Officer opened the parcel and found 15 handbags inside.  Each handbag contained a packet of crystalline substance, which, upon chemical examination, was confirmed to be the subject dangerous drug in the case.  The Customs Officer then restored the parcel to its original state.  At a later time on that day, another Customs Officer delivered the parcel to a secretarial company located at Hoi Yuen Road, Kowloon according to the address on the parcel.  The secretarial company received the parcel on behalf of a client, Mr YAU (transliteration) of Jenny’s Fashion Limited.

7.Around 2:40 p.m. on 8 January 2018, the Applicant, having signed for and collected the parcel in question at the secretarial company, was immediately arrested by a Customs Officer in the corridor outside the door.  The Applicant stated under caution that someone instructed him to collect that parcel, and he could earn a reward of several hundred dollars, but he had no knowledge of the contents of the parcel. 

8.The Applicant later agreed to let the Customs Officer check the communication records and message records on his mobile phone, and to assist the Customs Officer in conducting a controlled delivery operation.  During the enquiries, the Applicant’s mobile phone rang. It was a call from a person named “Chung Loi (transliteration)” using WeChat, but the Applicant told the Officer that “Chung Loi” had nothing to do with the case.  However, “Chung Loi” kept on calling, and six calls in total were made within a short time, but the Applicant did not answer any of them.  Eventually, shortly after 3:07 p.m. that day, the Applicant told the Customs Officer that “Chung Loi” was the person who instructed him to go to the secretarial company to collect the parcel.

9.During the controlled delivery, “Chung Loi” again called the Applicant with WeChat for a number of times. He kept giving instructions to the Applicant and hurried the Applicant into handing over the parcel to the contact person.  Meanwhile, the contact person told the Applicant repeatedly over the phone that there were police vehicles near the location intended for handover, and therefore he was unwilling to meet the Applicant.  Having dawdled for a while, the Applicant and the contact person eventually agreed to meet near Yuet Wah Street, Kwun Tong for the handover. 

10.Around 5:50 p.m. on the same day, when the Applicant handed the parcel to the contact person, a Customs Officer arrested the contact person, who was the person named in the indictment, TSANG Yiu Fai.

11.On 9 January 2018, a video-recorded interview was conducted between the Applicant, in his mother’s company, and a Customs Officer.  In the video-recorded interview, the Applicant asserted that he had no knowledge at all of the dangerous drug in the parcel.  The Applicant also stated that he was a Form 6 student and he would work part-time after school.  In December 2017, he came to know “Chung Loi” from a post in an online column about part-time work.  “Chung Loi” told the Applicant that transportation work could be arranged at an hourly rate of several hundred dollars, without specifying the types of goods.  Although the Customs Officer enquired repeatedly of the Applicant about the records of messages and communications between the Applicant and “Chung Loi”, he explained that despite a number of contacts with “Chung Loi” using WeChat before the material day, namely 8 January 2018, eventually no work was carried out due to problems of timing and arrangements and so on.  It was the first time that the Applicant had done any real work for “Chung Loi” on 8 January 2018.

The Defence Case

12.The Applicant elected to give evidence in court, and adopted what he said during the video-recorded interview.  Under cross-examination, the Applicant at last admitted that he had worked for “Chung Loi” in December 2017.  The Applicant explained that he did not deliberately lie to the investigating officer in the video-recorded interview, just that his mind was in utter confusion at that time.

13.Apart from the Applicant, the defence also called a social worker of the Applicant’s school as a character witness.

The Crucial Issue of the Trial

14.As can be seen from the above, the only issue in this case was whether the Applicant knew at the time of the offence that the parcel contained a dangerous drug.

Grounds of Appeal

15.Mr Eric Cheung, Solicitor Advocate for the Applicant, put forward the following grounds of appeal:

(1)  The Trial Judge erred in failing to give proper directions to the jury in respect of the “uncharged acts”;

(2)  The Trial Judge did not tell the jury that regarding the element of knowledge of the dangerous drug in the case, “suspicion” was not enough;

(3)  The Trial Judge did not point out to the jury that they might not rely on what happened during the controlled delivery to draw an inference as to whether the Applicant knew the parcel contained a dangerous drug; and

(4)  The prosecution wrongly assumed “1258594120” shown in the Applicant’s call records to be another person’s phone number, and as a result, unfairly cross-examined the Applicant in this regard.

Discussion

Ground of Appeal 1: “Uncharged acts”:

16.In this case, the prosecution did not have any direct evidence to prove that the Applicant knew at the time he received the parcel that it contained a dangerous drug.  As the trial judge pointed out in the summing-up:

“Well, actually, in the present case, how can the prosecution prove that the defendant knew? Well, when there is no direct evidence to directly prove the offence, the prosecution has to rely on circumstantial evidence to prove that the defendant committed the offence. In a nutshell, the prosecution is relying on those circumstances relating to the offence and the defendant as evidence. According to the prosecution, if the evidence is considered piece by piece together, the conclusion will definitely be that the defendant knew there was a dangerous drug in the box.” [1]

17.Therefore, what evidence the jury actually adopted as the relevant circumstantial evidence in drawing an inference of guilt is indeed important.

18.It is worth noting that when cross-examining the Applicant, the prosecution not only explored the previous work relationship between the Applicant and “Chung Loi”, but also raised the following questions near the end of the cross-examination:

“Q: The type of work that ‘Chung Loi’ arranged for you was absolutely not as simple as transportation. Do you agree?

Judge: That is to say …

A: That is, looking at it now …

Judge: Now, objectively speaking, looking at it retrospectively, everyone knows it was not that simple, but I want - - I think the question is when he/she asked you to work for him/her at the beginning, did you know that the work he/she asked you to do would not be as simple as transportation, …

Mr Lui (transliteration): Right.

Judge: … I think it is more accurate to put the question this way.

Mr Lui: Fine.

A: That is…

Judge: That is, you knew from the very beginning that the transportation or the work of moving stuff he asked you to do for him/her was not that pure, that simple.

A: Disagree.

Q: Having worked for ‘Chung Loi’ for the entire Christmas holiday, you definitely knew the goods that you handled were dangerous drugs. Do you agree?

A: Disagree.” [2]

19.In the closing submission, the prosecution put forward the following argument:

“Taking all the evidence of this case into consideration, it is the prosecution case that the only reasonable inference is that before collecting the parcel, it was already very clear to the defendant that there would be a dangerous drug in the parcel, because the defendant knew very well what he joined during the Christmas holiday of 2017 was the dangerous drug trade. This is the prosecution’s submission.” [3]

20.In other words, the prosecution was inviting the jury to consider the Applicant’s previous act of trafficking in a dangerous drug outside the scope of the charge, and to infer from it that the Applicant definitely knew that the parcel he collected on the material day contained a dangerous drug.

21.However, although the Applicant admitted that he did work for “Chung Loi” during the Christmas holiday before the incident in this case took place, he claimed that it only involved transportation work.   In this regard, we only have what the Applicant himself said.  There was no evidence in the case to prove that the Applicant in fact trafficked in a dangerous drug for “Chung Loi” during that time.

22.Under such circumstances, Mr Eric Cheung pointed out that the Trial Judge should not have allowed the jury to make wild speculation when there was no evidence, and that the jury should have been specifically directed that they might not rely on the “uncharged acts” to draw an inference of guilt.

23.Mr Eric Cheung continued to say that instead of reminding the jury of this, the Trial Judge, by way of “reversed logic”, directed the jury that based on the fact that the parcel on the material day contained a dangerous drug, an inference might be drawn as to whether the work which the applicant previously did to assist “Chung Loi” definitely involved a dangerous drug.  The relevant part of the summing-up related to this complaint is as follows:

“The prosecution asked you to infer … the prosecutor said, having worked for him/her for the entire holiday, would it be possible that you still don’t know he/she is a drug dealer? … or based on this occasion on 8 January, you may infer that he/she was definitely talking about dangerous drugs. What else if not talking about dangerous drugs? Well, you have to think whether the prosecution’s evidence can make you believe, or even exclude other possibilities?” [4]

24.In HKSAR v Kwok Hing Tony[5], the Court of Appeal explained how a judge should deal with this kind of evidence concerning “uncharged acts”.  The defendant in Kwok Hing Tony was alleged to have committed a number of sexual offences within a period of time, and the evidence given by the prosecution witness in court covered “uncharged acts”.  The Court of Appeal pointed out in the judgment that in certain cases, evidence of “uncharged acts” is admissible, but the judge must specifically remind the jury that firstly they have to be sure that the acts concerned indeed took place, and secondly, even if the acts have been established, the jury may not infer from such evidence that the defendant had committed similar offences, or that he is a person with a propensity to commit an offence.

25.Similarly, in HKSAR v Cheung Kim Shing[6],the Court of Appeal cited Kwok Hing Tony and pointed out that the evidence as to whether the applicant in that case did traffic in dangerous drugs on other occasions in the past was, to the applicant in that case, of prejudicial effect which far outweighed its probative value, and therefore it should be excluded and should not be adduced in court.  In any event, even if such evidence is admissible, the judge should nonetheless direct the jury that they may not based on such evidence infer that the defendant would have committed similar offences, or that he has a propensity to commit an offence.

26.The Court of Appeal also pointed out in HKSAR v Wong Hei Chit[7], a case in which the prosecution invited the jury to rely on circumstantial evidence to draw an inference of the defendant’s knowledge of dangerous drugs, that since the prosecution alleged that during the time before that specified in the charge, the applicant in that case similarly used the transportation of mobile phones as a smoking screen for drug trafficking, the judge must emphasize to the jury that whether the applicant was involved in any act of drug trafficking at a time other than that specified in the charge was not what they were required to deal with in the case.  The jury should also be reminded that they might not rely on the relevant matter when considering whether the offence of drug trafficking in the case was to be established.

27.In respect of the present case, as mentioned earlier, the prosecution did not have direct evidence to prove the Applicant’s knowledge of the dangerous drug in the parcel, but instead relied on the previous relationship between the Applicant and “Chung Loi”, the records of the Applicant’s phone communications, the background before and after the Applicant collected the parcel, the Applicant’s own admission that he could earn a reward several times the hourly rate of his previous part-time work, and so on to ask the jury to draw an adverse inference against the Applicant. Therefore, if the jury wrongly reckoned that the prosecution’s allegation that the Applicant had all along been assisting “Chung Loi” in drug trafficking was a matter they might take into consideration, it would obviously be contrary to the relevant legal principle, and it would definitely be unfair to the Applicant, particularly when, as both parties agreed, there was in fact no evidence in this case to prove that the Applicant had trafficked in dangerous drugs for “Chung Loi” before the incident in this case occurred.

28.Therefore, while the evidence of the previous relationship between the Applicant and “Chung Loi” should be admissible as the relevant background, the trial judge indeed should have reminded the prosecution that they might not invite the jury to speculate that the previous work of the two persons involved acts of drug trafficking.  Meanwhile, the jury should have been reminded that the relevant background evidence only served to show that the occasion on the material day was not the first contact between the Applicant and “Chung Loi”.  Besides, when the prosecution had obviously crossed this line in both the cross-examination of the Applicant and the closing submission, and had proceeded to state implicitly or explicitly that the applicant and “Chung Loi” had all along been trafficking in dangerous drugs, the Trial Judge indeed should have given the jury the appropriate directions in accordance with the above authorities.

29.Regrettably, instead of giving the relevant directions in this case, the trial judge in the summing-up as cited above similarly invited the jury to consider whether the applicant had trafficked in dangerous drugs for “Chung Loi” during a period prior to the incident in this case..

30.Therefore, in respect of Ground of Appeal 1, this Court agrees that the directions that the Trial Judge gave to the jury on the issue in question were inadequate and wrong.

Ground of Appeal 2: “Suspicion” was not enough

31.Regarding this ground of appeal, Mr Eric Cheung mainly relied on HKSAR v Lai Wing Huen[8] to show that the trial judge should have given precise directions to the jury in this case, i.e. even if the Applicant suspected that the parcel contained a dangerous drug, it was not enough to prove the element of “knowledge” in the offence of trafficking in a dangerous drug. 

32.This Court holds that the circumstances of Lai Wing Huen have unique features and are not comparable to the circumstances of the present case.

33.Firstly, in Lai Wing Huen, prosecuting counsel emphasized in his final submission that the applicant had already suspected at an earlier stage that the person who asked the applicant to collect the red wine containing a dangerous drug might be a drug trafficker.  Prosecuting counsel said, “She did not check, obviously because she knew it was not red wine inside” and “had you harboured even a slight suspicion, or if you should have had reasonable suspicion, you would have opened it to take a look” [9].

34.Secondly, the Court of Appeal pointed out in Lai Wing Huen, “Prosecuting counsel appeared to be pointing out to the jury that, from the applicant’s conduct of deliberately not opening the wine bottles to take a look, it could be inferred that the applicant knew what the bottles contained.” [10]     

35.Eventually, the Court of Appeal made the following conclusion in Lai Wing Huen:

“28. The only issue in the present case was whether the applicant had ‘knowledge’. The judge must make it clear to the jury that mere suspicion was not enough and that the prosecution had to prove that the applicant knew the wine bottles contained a dangerous drug. In light of the above submission by prosecuting counsel, it was necessary for the judge to clearly point out to the jury that mere failure to examine the wine bottles or ‘to check’ was not by itself equivalent to the applicant having knowledge of what the wine bottles contained.

29. In the present case, the judge had more than once reminded the jury that the burden of proof was on the prosecution who had to prove that the applicant knew the bottles contained a dangerous drug. However, after prosecuting counsel made the above submissions, the judge did not make it clear to the jury that mere suspicion was not enough, which might have misled the jury into thinking that if the applicant, despite harbouring a slight suspicion, did not open the polyfoam boxes to see what the wine bottles contained, it would be equivalent to her having knowledge.” [11]

36.However, in the present case, the prosecution did not make a submission similar to that in Lai Wing Huen, and the Trial Judge even emphasized in the summing-up:

“Well, so if he said, had to know (sic), well, there is in fact only one reason, that is, someone told him, that is, his predecessor, his superior, or someone else, or a contact person told him that those were dangerous drugs. Well, if only in such circumstances that no check was needed, and he knew that, and he still agreed to go on doing such work,” [12]

37.Moreover, the trial judge further explained to the jury in the summing-up that even if they were of the view that the Applicant believed or suspected that there were prohibited or illicit items in the parcel, it did not mean that the prosecution had proved that the Applicant had knowledge of the dangerous drug in the case:

“And taking a step backward, if the defendant knew at most that he was doing something bad for “Chung Loi”, something illegal, that is to say, something improper, or dealing with something generally referred to as prohibited items, is it enough? … Well, will you consider that even if you are of the view that the defendant knew it was something not proper, not decent, not normal goods, or else the offer would not have been so good, with him paid that much as a reward and you were asked to erase this and erase that, well, could it be the case that he at most only knew they were prohibited items? Well, is there evidence to show that he definitely knew it was a dangerous drug? These are what you need to consider. Only if you can exclude all - all other possibilities and draw the only reasonable inference, that is to say from all the circumstantial evidence, these facts, we can make a conclusion, which is a definite and reasonable conclusion, that is to say he definitely knew it was a dangerous drug, only under such circumstances can you convict him. Otherwise, your duty is to consider that even if he could only reckon that those were problematic goods, it did not mean that it was a dangerous drug. Then you must acquit him. Well, that’s all I want to say.” [13]

38.This Court holds that the Trial Judge had already given the jury adequate and proper directions as to the prosecution’s obligation to prove the Applicant’s knowledge of the dangerous drug in the parcel. Lai Wing Huen does not require the presiding judge in every case to direct the jury that “suspicion is not enough”.  Whether it is necessary to give the relevant direction depends on the circumstances of individual cases.

39.If the presiding judge had already adequately and properly dealt with the element of “knowledge”, and there was no other matter in the case that might mislead the jury into equating “suspicion” with “knowledge”, then it was indeed not important whether the presiding judge gave the directions laid down by the Court of Appeal in Lai Wing Huen, let alone having to state to the jury verbatim that “suspicion is not enough”.

40.In view of the above, this Court finds that Ground of Appeal 2 cannot be sustained.

Ground of Appeal 3: What happened during the controlled delivery

41.This ground of appeal involves the controlled delivery that the Applicant took part in after his arrest.  It is not disputed that after the arrest of the Applicant, “Chung Loi” kept calling the Applicant to enquire about the situation, and told the Applicant that “it’s dangerous even just holding the things on the street” [14], and that the goods should be handed over as soon as possible; and the recipient of the goods who had contact with the Applicant also told the Applicant that police vehicles were parked near the original location intended for collection of goods, and therefore it was inconvenient to collect the goods.

42.In respect of this issue, the prosecution stated in the closing submission as follows:

“What kind of work could that be where handover could not be done where there were police vehicles? What kind of goods could they be to be dangerous to hold on the streets? … Of course, as to the circumstances of the handover involving the presence of police vehicles, the time concerned was after the arrest of the defendant. The messages from ‘Chung Loi’ saying, ‘it’s dangerous to go out holding the things’ and ‘it’s dangerous to hold the things on the streets’ also came after the arrest of the defendant, but these two people concerned in fact did not know at that time that the defendant had been arrested. And the people whom the defendant had contact with included ‘Chung Loi’ who knew that ‘it’s dangerous to hold the things on the streets’, and the person going to collect the things from the defendant later on who (dared) not carry out the handover upon seeing the police vehicles. Could it be the case that the defendant was the only person kept in the dark in this group, this syndicate? Could it be the case that the defendant was the only person not knowing that what he was dealing with was a dangerous drug?” [15]

43.In the summing-up, the Trial Judge recapped the evidence in this regard, and stated to the jury:

“… during that time, the defendant received a message from ‘Chung Loi’. ‘Chung Loi’ was very anxious. He/She told the defendant to ‘hurry up and take a taxi to get there. Don’t waste time. It’s very dangerous to hold the things on the streets.’ Bear this sentence in mind.” [16]

44.Mr Eric Cheung pointed out that during the controlled delivery, the Applicant was required to follow the instructions of the Customs Officers in having conversations and might not respond according to his own state of mind and perception, and therefore it was indeed unfair to the Applicant for the prosecution to emphasize such conversations.  For instance, even if the Applicant wanted to raise a question upon hearing “Chung Loi” mention that “it’s dangerous to hold the things on the streets” or wished to clarify with “Chung Loi” what was being referred to as “dangerous”, given the passive role he was playing at that time, there was no way for him to make enquiries.

45.This Court agrees with Mr Eric Cheung’s observation. If the jury took into account the Applicant’s response and conduct during the controlled delivery, or to put it more accurately, the Applicant’s failure to respond or act, such as his failure to raise queries with “Chung Loi” or the recipient of the goods, or to indicate that he did not understand something and so on, and as a result drew an adverse inference against the Applicant, it is apparently unfair to the Applicant.

46.In the present appeal hearing, as to whether what “Chung Loi” and the recipient of the goods said to the Applicant during the controlled delivery amounted to “hearsay evidence” or whether what they said should be admitted as evidence, the parties only made preliminary submissions in court, without going into depth on the relevant principles; nor did they rely on authorities involving “hearsay evidence” to further elaborate on the arguments to this Court. Therefore, this Court does not consider it appropriate to comment on this issue here.

Ground of Appeal 4: The Applicant’s phone communication records

47.The parties agreed during the appeal hearing that the number “1258594120” shown in the Applicant’s communication records was in fact not another person’s phone number, but a code internally set by the telecommunication service provider concerned, to show that the card holder was using Wi-Fi service at the time.

48.Regrettably, during the trial, before ascertaining the relevant matter, the prosecution wrongly assumed that “Chung Loi” used this number to call the Applicant.  From the transcript, we can see that when the prosecutor was cross-examining the applicant, he queried the Applicant time and again, saying that through this number, he had had repeated and prolonged telephone conversations with “Chung Loi”.  It is particularly important that the prosecutor claimed that the Applicant continued to stay in contact with the holder of this phone number after his release on bail following the arrest:

“Q: In respect of this case, you were released on bail afterwards. From 10 January, you only made five outgoing calls using - - which were all recorded through Wi-Fi service, three of which exceeding one thousand seconds. All calls were made by you, all involving this phone number, 1258594120. Can you see that?

A: Yes.

Q: Can you see that?

A: I can see that.

Q: Who was it?

A: I think it might be the telecommunication service provider. It should be.

…

Q: The total number of calls is 67. Now think carefully. Who was that person?

A: Not sure, that is, maybe the telecommunication service provider. Apart from the telecommunication service provider, I cannot think of anything else.

Q: I suggest to you that in fact that person was the person related to this case, who instructed you to hand over the parcel. Do you agree?

A: Disagree.” [17]

49.This point is extremely prejudicial to the Applicant.  The jury might reckon that if the Applicant had no knowledge of the dangerous drug in the case, he should have been alert to or angry at “Chung Loi” afterwards and would not have stayed in contact with “Chung Loi” after the arrest. 

50.Later on, the prosecutor even made the following statement in the closing submission:

“From exhibit D16 which we added as the last piece of evidence, we can see that the total number of calls that the defendant made to number X is 67, which is the largest number of calls during the one-and-a-half-month period from 1 December 2017 to 15 January 2018, even more than the defendant’s own mother’s. Given the large number of calls and the long duration of calls, is the explanation given by the defendant in court acceptable? Is it possible that (he) cannot remember those calls which were so large in number and so long in terms of duration?” [18]

51.The prosecution was obviously challenging the credibility of the Applicant as a witness on the basis of the evidence that the Applicant gave about that phone number.

52.Such an approach of the prosecution was not only obviously wrong, but also unfair to the Applicant. In fact, it should not be difficult to ascertain whether that number was another person’s phone number.  If the prosecution did not have relevant substantive evidence during the trial, the prosecution should not have made speculations that were prejudicial to the Applicant, or even implied that the number belonged to “Chung Loi”.

Conclusion

53.In light of the above, Grounds of Appeal 1, 3 and 4 do stand.

54.Mr Ivan Cheung, Senior Public Prosecutor representing the Respondent, hoped that this Court would uphold the guilty verdict against the Applicant by applying “the proviso”.  However, this Court is of the view that the jury was not given adequate and proper directions in respect of the above issues.  This Court cannot be sure whether the jury, if appropriately directed, would have accepted the prosecution case eventually.  Therefore, this Court holds that it is not proper to invoke the power under “the proviso” in this case.

55.This Court grants the Applicant’s application for leave to appeal against conviction and, treating his application as the appeal proper, we allow the appeal.  The conviction is quashed and the sentence set aside.

Mr Ivan Cheung, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Eric Cheung, Solicitor Advocate instructed by ONC Lawyers, assigned by the Legal Aid Department, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law.