HKSAR v. Chan Kai Ming and Another

CACC 262/2019

[2021] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 262 OF 2019

(ON APPEAL FROM HCCC 370 OF 2018)

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J U D G M E N T

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Introduction

1.The 1^st and 2^nd applicants stood trial before Deputy High Court Judge Woodcock (the judge) and a jury jointly charged with one count of trafficking in a dangerous drug, consisting of a total of 4.87 kilogrammes of methamphetamine hydrochloride (commonly known as Ice).  They pleaded not guilty to the count but were convicted after trial by unanimous verdicts of the jury on 22 August 2019. The next day, they were each sentenced to 28 years and 4 months’ imprisonment.

2.The 1^st applicant now seeks leave to appeal against both conviction and sentence, while the 2^nd applicant seeks leave to appeal against conviction only.  Both applicants appear in person, having had legal aid and other free legal services refused.

3.At the first hearing, they both submitted written submissions in Chinese.  The 1^st applicant formally abandoned his application for leave to appeal against sentence and accordingly it was dismissed.  The hearing was adjourned in order to arrange English translations of the submissions submitted by the applicants and to give the respondent an opportunity to consider and respond to the grounds advanced by them.  I should point out that they filed their leave applications in September 2018, without stating any grounds of appeal.  They were provided with an appeal bundle in October 2019 and a Chinese translation of the summing-up in August 2020.  They both claimed they filed their written submissions at the last minute because the papers were in English and it took time to have some of the papers translated into Chinese for them to consider. 

4.At the adjourned hearing, the 1^st applicant handed up a covering letter dated 18 May 2021, attaching a written submission in response to the supplemental submission of the respondent.  He also handed up an extract of the summing-up of Campbell-Moffat J in HKSAR v Ali Haidar, HCCC2/2018.  The covering letter and attachments had not been received by the court.

The prosecution case

5.The prosecution case was that the 1^st and 2^nd applicants jointly arranged to import into Hong Kong drugs contained in a parcel that had been sent from Malaysia.

6.The 2^nd applicant was the first of the two to arrive in Hong Kong on 20 March 2018.  He checked into the Wing Tai Guesthouse at Pak Lok Building, 326 Nathan Road, Kowloon.  During his stay in Hong Kong, he had arranged two parcels to be delivered to him from Malaysia.[1] The first parcel, Exhibit P52, arrived on 21 March 2018 through the freight services of DHL.  The second parcel, Exhibit P53, arrived in Hong Kong from Malaysia on 26 March 2018 and again through the freight services of DHL.  Both parcels were sent to the 2^nd applicant at the address of the guesthouse.  The parcels contained foodstuffs.[2] 

7.On 1 April 2018, the 1^st applicant arrived in Hong Kong from Malaysia.  He met the 2^nd applicant and together they looked to find suitable accommodation for him.  They went together to the Bridal Tea House Hotel (the hotel) where the 1^st applicant rented a room.[3]  The 2^nd applicant paid for the initial cost for the room.  It was explained by the 1^st applicant that the 2^nd applicant did so because he had not converted his Malaysian money into Hong Kong currency.[4]

8.Both applicants had entered Hong Kong on a visitor’s visa. 

9.On 3 April 2018, Customs officers conducted an examination of an inward bound DHL courier parcel with waybill numbered 7076903341.  They found inside the parcel 3 large bottles of Sambal chilli sauce, which contained 9 packets of a total of 4.87 kilogrammes of Ice.[5]

10.On the same day at 4:28 pm, Customs officers conducted a controlled delivery operation in respect of the parcel. They first contacted the consignee of the parcel by calling the telephone number 54294215 that was stated on the waybill, whose subscriber was the 1^st applicant.  At about 4:45 pm, Customs officers observed the 1^st and 2^nd applicants sitting and chatting on the wooden bench outside the main door of the hotel.[6] 

11.When the Customs officer, posing as an employee of DHL, arrived at the hotel, the 1^st applicant claimed to be the consignee of the parcel.  His name was slightly different from the name on the waybill but his identity was confirmed by using his telephone number 54294215 to call the undercover Customs officer.  Upon acknowledging receipt of the parcel, the 1^st applicant was arrested and thereafter the 2^nd applicant, who was present in the hotel.[7]

12.The hotel rooms of the applicants were searched.  Inside the 1^st applicant’s room, Customs officers found a rucksack containing a new cutter, 93 resealable plastic bags, a small electronic scale and 11 rubber gloves.[8] Inside the 2^nd applicant’s room, they found two opened DHL cartons, which contained some foodstuffs.  The 2^nd applicant was the consignee for both cartons.  On the waybill attached on one of the cartons was the same telephone number, namely 54294215, as stated on the parcel containing the drugs.  They also found a receipt for the purchase of the very same size plastic bags recovered from the 1^st applicant’s room.[9]

13.The CCTV footages of the hotel showed that both applicants spent a lot of time together from the moment the 1^st applicant arrived.[10]

14.Under caution, the 1^st applicant said that in respect of the parcel he had asked his friend, Grace Ong, to send him some chilli sauce and native food products in order to conduct a marketing survey in Hong Kong.  He did not receive any remuneration for collecting the parcel.[11]

15.Under caution, the 2^nd applicant denied he knew the 1^st applicant.[12]

16.In a subsequent video recorded interview, the 1^st applicant stated:

(a) He asked a friend called Grace Ong to deliver some chilli sauce samples to him for his marketing work in Hong Kong but he did not know exactly what the parcel contained.[13]

(b) He originally claimed that he did not know the 2^nd applicant before he came to Hong Kong[14] and the 2^nd applicant did not know he would receive a parcel from Grace Ong.[15]  However, after showing him a photo in his mobile phone,[16] the 1^st applicant admitted he knew the 2^nd applicant before he came to Hong Kong.[17]

(c) He denied he arranged the drugs to be delivered to Hong Kong.[18]

(d) He admitted there was a scale and some resealable plastic bags inside his backpack, which were placed inside his hotel room[19] and they were used for packaging the chilli sauce.[20]

17.In a subsequent video recorded interview, the 2^nd applicant said:

(a) He came to Hong Kong as a tourist[21] but he did not want to go for any sightseeing[22] and only wanted to rest. 

(b) He had known the 1^st applicant for 3 to 4 years[23] but he only met him in Hong Kong by coincidence.[24]

(c) He had helped the 1^st applicant to check the status of the parcel at the website of DHL.[25]

(d) He had asked some of his friends in Malaysia to send boxes of food to him in Hong Kong but he did not open the chilli sauce bottle.[26]

(e) The plastic bags found in his room were bought by him in Hong Kong and were to be used to seal coffee powder.[27]

(f) He denied he had any knowledge of the contents of the parcel.

18.In the 1^st applicant’s mobile phone, he saved the contact details of Grace Ong and her profile picture also appeared in the 2^nd applicant’s mobile phone as a WeChat contact by the name of “Chi Chi”.[28]

19.The street value of the drugs at the time of the offence was about $3,456,120.[29]

The defence case

20.Both the 1^st and 2^nd applicants elected to give evidence but did not call any witnesses on their behalf.

21.The 1^st applicant’s case was that he was in Hong Kong primarily to conduct a marketing survey on the viability and possibility of importing Malaysian chilli sauce.  The parcel was sent to him by a supplier, at his request, and he had no idea or any knowledge of the Ice inside the chilli bottles.[30]  All the items found in his room were for handling the chilli sauce.[31]  He claimed that all the phone calls between him and Grace Ong after his arrival in Hong Kong were about the safe arrival of the parcel.[32]

22.The 2^nd applicant’s case was that he was in Hong Kong on holiday and had not arranged to meet the 1^st applicant. It was purely a coincidence that they were in Hong Kong at the same time.  They met up to have a meal and chat.  The food found in his hotel room was previously sent to him from Malaysia by DHL and was for his own consumption or to be given as gifts to a relative.  It did not contain any drugs and he had no knowledge of the drugs found in the parcel.[33]

The issue at trial

23.The main issue at trial was whether each applicant knew there were drugs in the parcel and whether they were involved together in the importation of the drugs.[34]

24.The judge gave the standard directions to the jury in her summing-up, explaining the elements of the offence,[35] the concept of joint enterprise[36] and the drawing of inferences.[37]  The judge also gave a good character direction in favour of both applicants.[38]  The judge summarised in detail the evidence for the prosecution[39] and the defence[40] and focused the jury’s attention on the issue as to whether the applicants knowingly imported drugs into Hong Kong. 

The grounds of appeal

25.The 1^st and 2^nd applicants did not enumerate any grounds of appeal in their respective appeal notices.  They have, however, in their respective written submissions make general complaints about certain evidential matters and the judge’s handling of them. 

26.They both complained that they are without legal representation in making their leave applications and that the papers are mainly in English, without Chinese translations (although their proficiency in Chinese is limited), which has made it difficult for them to prepare their written submissions.  They also complain that because they are Malaysian nationals they have limited legal knowledge and language ability in order to conduct their applications.  As I have already noted, the applicants have applied to various free legal services for legal assistance, which have been refused.  It is apparent from the court file that throughout the proceedings of this case a Chinese interpreter has been made available to provide translation services to the applicants, and that documents, including translations of documents from English to Chinese when appropriate, have been provided when requested by the applicants.  Both applicants submitted written submissions in Chinese in which they had indicated that they had been assisted by fellow inmates.

27.The 1^st applicant complains that it was wrong for the judge to present to the jury that there was no issue that he had taken possession of the parcel.  He makes the point that his fingerprints were not found on the parcel and that he did not touch the parcel prior to his arrest.  He asks rhetorically how could he be found to be in possession of the parcel in such circumstances.  He also complains the judge failed to give a lies direction to the jury.

28.The 2^nd applicant complains that the judge wrongly allowed evidence to be adduced at trial of his prior receipt of two parcels and the linking of one of those parcels with the parcel containing the drugs because of a common telephone number on the airway bills.  He also complains that there was no direct evidence against him of having knowledge of the drugs in the parcel and the prosecution case was based on circumstantial evidence and inferential reasoning.

29.Mr Derek Wong, for the respondent, explains that the present case hinged on whether the circumstantial evidence was sufficient for the jury to draw the only reasonable inference against the two applicants that they knew there were dangerous drugs in the parcel.  He notes that the judge clearly emphasised this issue with the jury.

30.The judge had also addressed the concept of drawing an inference[41] and repeatedly reminded the jury that the inference had to be the only irresistible one.[42]  She explained to the jury why the prosecution said this inference was the only irresistible one[43] and why the defence said it was not.[44]  She directed the jury on various occasions that if the version of the applicants was true or might be true, they should be acquitted.[45]

31.Mr Wong submits that the judge’s directions were fair and balanced and no error could be found in her summing-up.

Discussion

32.The 1^st applicant complains that the judge incorrectly told the jury that there was no issue that he had taken possession of the parcel.  His complaint is directed to the judge’s italicised remarks in the following passage:

“In cross-examination, it was suggested to PW3 that the 1^st defendant never voluntarily identified himself as, “Jonathan Chan”, either over the phone or outside the hotel. You will recall PW3 disagreed. He also disagreed with the suggestion that he arrested the 1^st defendant as he took hold of the box but had not yet turned around to walk away. However, there is no suggestion by the 1^st defendant that he did not take possession of the box.”[46] (Emphasis added)

33.The 1^st applicant argues that it was always his case that he denied taking possession of the parcel but this claim is inconsistent with the evidence that he gave at trial.  His evidence was that he had arranged the parcel of chilli sauce to be sent to him in order to do some market research and that when the parcel was delivered to him at the hotel he had to confirm his identity with the Customs officer, who was posing as a DHL employee.  Having confirmed that he was the consignee of the parcel, he signed the delivery form to acknowledge receipt of it.  His defence at trial was he did not know the parcel contained drugs.[47] 

34.Mr Wong is correct in his submission that the 1^st applicant has equated possession with “physical contact”, while in law a person has possession of an item if it is in his actual physical custody, or otherwise within his control, and he knows it is there and has the intention to exercise custody or control over it.  He submits that once the 1^st applicant accepted delivery of the parcel by signing the acknowledgement of receipt of it he had taken possession as it was under his control at that moment.  He points out that this was not disputed by the 1^st applicant at trial.  He refers to defence counsel’s closing address to the jury that there was no dispute by the 1^st applicant that he signed the receipt for the parcel and that the key question was whether he knew before his arrest that there were drugs inside it.[48]  I should add that the remarks of Campell-Moffat J in the extract of her summing-up in HKSAR v Ali Haider which the 1^st applicant relies upon, seem confined to an issue of actual physical possession and are not an authoritative statement on the legal principles in respect of possession.

35.When it came to the issue of possession, the judge reminded the jury:

“The prosecution alleges the defendants possessed the dangerous drugs for the purposes of trafficking in them. You may not convict the defendants unless you are sure that the prosecution had proved that on that day, on or about 3 April, (a) the defendants possessed the dangerous drugs in that box, (b) they knew dangerous drugs were in that box and (c) they possessed the dangerous drugs for the purposes of trafficking in them.”[49]

36.The judge went on to give a very full explanation of what constituted possession:

“As a jury, you have to be sure that the defendants had the drugs in their possession. A person is in possession of an object if it is in his actual physical custody, like in his hand or in his pocket, or it is otherwise within his control, for example, kept in his bedroom and he knows it is there and he has the intention to exercise custody or control over drugs kept in his bedroom. The 1^st defendant, the prosecution say, was in physical custody having signed for the box as the named consignee. He agrees he signed for it and the 2^nd defendant was with him and had the same intention as him, that is to exercise custody or control over the contents of that box.

The drugs can be in possession of more than one person at a time. The drugs may be possessed by more than one person at the same time. If two or more people exercise custody or control over drugs and that any of them may deal with the drugs as and when they see fit, then all are in control of the drugs in the sense that I have described the word ‘control’ and all are therefore in possession of those drugs.

It will remind you again that you must consider the case against and for each defendant separately. The evidence concerning each defendant is different and therefore your verdict may not be the same for each defendant. For example, here the 1^st defendant took physical custody of the box and acknowledged that he was the consignee named by the shipper. The 2^nd defendant is not named by the shipper on the waybill or the shipper’s declaration form, but you may find from other evidence that he is also in possession and has the intention to exercise custody or control over the drugs with the 1^st defendant.”[50]

37.It should also be noted that the judge highlighted to the jury the different versions between PW3 and the 1^st applicant as to whether the 1^st applicant had physically taken the parcel.

38.It was an admitted fact that no marks of any value were found on the drug exhibits for the purpose of fingerprint identification.  In respect of this evidence, the judge said that the fact that neither the 1^st applicant, nor the 2^nd applicant’s fingerprints could be identified was “neither here nor there”, and the absence of such information “did not help the defendant”.  She added that a lack of fingerprint evidence is “a neutral factor” and “proves nothing either way”.[51] 

39.As rightly pointed out by Mr Wong, the lack of the 1^st applicant’s fingerprints on the parcel was of no significance to the issue of possession in light of the evidence that the 1^st applicant arranged the parcel to be sent to him and when it arrived he acknowledged receipt of it.  He notes that defence counsel in his closing address to the jury, whilst mentioning the lack of the 1^st applicant’s fingerprints on the parcel, did not as a consequence invite the jury to draw an inference in favour of the 1^st applicant.[52]  However, it seems to me that defence counsel mentioned this because there was no evidence linking the 1^st applicant to the drugs and their wrappings.  The point Mr Wong makes may be correct in relation to the argument about possession, but did the judge inadvertently remove from the jury a relevant consideration as to whether the 1^st applicant knew there were drugs in the parcel; was it “neither here nor there” that the 1^st applicant’s fingerprints were not found on the drug exhibits?  Was the 1^st applicant entitled to have that fact considered by the jury in support of his defence that he did not know there were drugs in the parcel?[53]

40.The 1^st and 2^nd applicants openly admitted that they had not told the truth about knowing each other at the time that they were arrested.  Both in their evidence explained why they did so.  Prior to the judge giving her summing-up to the jury, she discussed this issue with counsel.  None of the counsel suggested that a lies direction was required.  It was the prosecution’s position that a lies direction was not necessary because no point was being made of the matter.[54]

41.In the circumstances of the case, it was appropriate that the judge did not give a lies direction, and in fact it may have done more harm than good if the judge had done so.  See Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, and Jim Fai v HKSAR (2006) 9 HKCFAR 85.

42.The 2^nd applicant complains that the discovery of the two DHL parcels found in his room was irrelevant to the offence he faced and should not have been adduced into evidence.  The telephone number of the sender on the second parcel received by him was the same as the one on the waybill of the parcel, containing the drugs, sent to the 1^st applicant.  The prosecution relied on this evidence, amongst others, to show that the two applicants were jointly engaged in the drug trafficking offence.[55] 

43.It was not in dispute at trial that the two parcels were received by the 2^nd applicant and no issue was taken as to their admissibility.  The two parcels and their respective waybills were produced by way of an admitted fact.[56] 

44.I do not find the complaints raised by the applicants to be reasonably arguable.  The subject evidence was relevant and properly adduced before the jury and the judge’s handling of these evidential matters and the legal issue as to possession cannot be faulted.

45.The only point that I find there is a reasonably arguable ground of appeal relates to the judge’s comments in respect of the fingerprint evidence and on this basis I grant the applicants leave to appeal their convictions.[57] I also grant the applicants an Appeal Aid Certificate in order to assist them in arguing their appeal before the Court of Appeal.

46.In respect of the home-made grounds of appeal that the two applicants have advanced, and in respect of which I have refused leave, they are reminded of their right to renew their applications for leave to appeal on those grounds to the Court of Appeal, but they are also warned of the consequences of doing so, which may include a direction of any loss of time spent in custody pending the appeal, if the Court were to come to the view that there was no justification for the renewal of their applications.

Mr Derek Wong, SPP of the Department of Justice, for the respondent

The 1^st and 2^nd applicants appear in person