HKSAR v. Cheung Man Kit and Another

CACC 21/2020

[2021] HKCA 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 21 OF 2020

(ON APPEAL FROM HCCC NO 236 OF 2018)

_______________

_______________

Before: Hon Zervos JA in Court

Date of Hearing: 15 June 2021

Date of Judgment: 15 June 2021

________________

J U D G M E N T

________________

1.The 1^st and 2^nd applicants stood trial with others before Deputy High Court Judge Bruce (the judge) and the jury on a single count of conspiracy to traffic in a dangerous drug, namely heroin. The 1^st and 2^nd applicants were D1 and D2 respectively at trial and that is how they will be referred to in this judgment.

2.At the conclusion of the trial, the jury returned a unanimous guilty verdict against D1 and a guilty verdict of five to two against D2.  Prior to the trial, D2 had pleaded guilty to a count of possession of a dangerous drug on a separate indictment.  The judge sentenced D1 to 20 years’ imprisonment and D2 to a total term of 12 years’ imprisonment.

3.Both D1 and D2 seek leave to appeal against their conviction.  D1 appears in person, having had legal aid refused.  D2 is represented by Mr Liu Yuen Ming, together with Mr Leung Sze Lum.  D2 also had legal aid refused but Mr Liu and Mr Leung appear on his behalf under the Hong Kong Bar Association Bar Free Legal Service Scheme.  Mr Liu appeared on behalf of D2 at trial.

4.At the commencement of the hearing of this application, D1 formally abandoned his application for leave to appeal against his conviction.  He confirmed that he had considered his application and took advice from Mr Eric Cheung of the University of Hong Kong, Faculty of Law, who advised him that he had no grounds of appeal.  As D1 has abandoned his application, his appeal against conviction is dismissed. 

5.The case against D1, D2 and others was that between 24 October and 25 November 2016, a team of police officers mounted a covert controlled-buy operation against a local drug syndicate active in the Mong Kok area.

6.The police investigation uncovered a 24 hour a day operation involving the sale of pellets of heroin, wrapped in plastic sheets, at the alley behind the Sun Hing Building, at Portland Street, Mong Kok.  It was alleged that the syndicate employed persons to act as lookouts and drug peddlers, who operated in shifts.  A table was set up at the rear alley where drug transactions took place, while the lookouts would sit at the entrance of the alley to alert the drug peddlers when there were police approaching the area.

7.The prosecution presented evidence from various police officers, who either acted undercover in the purchase of heroin at the rear alley or observed the activities of those involved in the drug transactions taking place.  D1 was observed on numerous occasions acting as a lookout and motioning people to go into the alley.  He was also observed counting money and handing it to other members of the syndicate.  On one particular occasion, he was acting as a lookout when D2 was inside the alley selling a pellet of heroin to an undercover police officer.  D2 was also observed on numerous occasions acting as a lookout and directing potential customers to the alley.  He was also observed counting money and dealing with other members of the syndicate as well as selling a pellet of cocaine to an undercover police officer.

8.It was alleged that D1 predominately had a supervisory role in the drug transactions taking place in the rear alley, while D2 acted as a lookout and sold drugs.

9.Included as part of the admitted facts were the telephone communications of the conspirators which revealed that D1 had contact with various conspirators, including D2, and D2 had contact with D1 and another conspirator.  The WhatsApp messages retrieved from D1’s mobile telephones contained discussions between him and co-conspirators about the drug syndicate operation. 

10.D1’s case at trial was that he had no involvement in the trafficking of a dangerous drug.  He claimed he was in the vicinity acting as a lookout in relation to illegal parking and involved in other activities, such as money lending, gambling and repossession of property.  He denied that he sold drugs to undercover police officers.  He claimed that the WhatsApp messages found on his mobile telephones were all to do with the operation of a garage and car repairs, and that the messages were not drug jargon but garage jargon.

11.D2’s case at trial was that he was selling pellets containing heroin but he was acting alone and was not part of a drug trafficking syndicate.  When he was arrested he was found with a pellet of heroin in his possession.

12.Although D1’s appeal has now been dismissed, I will briefly address his complaint about his conviction.  D1 has not provided any grounds of appeal other than the complaints he mentioned in his application for leave to appeal against conviction.  He complains that the judge was “manifestly impartial” (sic) in directing the jury, in that he failed to explain in full the determining factors for conviction, gave “deviated directions” to the jury, and failed to disclose the doubts in the case which should have been highlighted before the jury. 

13.In the perfected grounds of appeal for D2, Mr Liu advances four grounds of appeal.  Ground 1 complains that the judge erred in ruling D2’s six records of interview were voluntary, when at the time D2 was clearly not in a fit state to be interviewed because he was suffering with withdrawal symptoms because of his drug addiction.  Ground 2 complains that the judge erred in admitting into evidence the opinion evidence of SIP Lo Kwok Kin, a police officer who did not qualify as an independent expert.  Ground 3 complains that the judge erred in not delineating adequately the ingredients of the offence of conspiracy to traffic in a dangerous drug, other than in a general manner, and failed to properly explain the drawing of inferences in respect of the offence.  The judge’s summing-up in this regard was therefore insufficient and unbalanced.  Ground 4 complains that the conviction of D2 is unsafe and unsatisfactory.  No argument is advanced in support of this ground other than the arguments advanced in respect of the previous grounds of appeal.

D1’s appeal

14.While D1 catagorised his complaint against the judge’s summing-up as “manifestly impartial”, he means that the judge did not fairly sum up his case to the jury and that his directions were unfair and unbalanced. 

15.A review of the judge’s directions to the jury, show that he stressed to them the nature and importance of their task and how they should approach the evidence.  He gave the relevant standard legal directions and in the context of the facts and issues in the case.  Most importantly, the judge gave a comprehensive description of the evidence and the nature of the cases (as they related to the relevant defendant) before them, together with detailed directions on the offence of conspiracy and related matters. 

16.The judge emphasised that the prosecution case was to a large extent based on circumstantial evidence and took the jury to the prosecution evidence against each of the defendants.

17.There was a WhatsApp chat group, referred to as the Honda Racing Group, in which it was alleged members of the drug syndicate communicated about their operations.  There was evidence linking D1 to the chat room by his calculations and prices for pellets sold at the alley.  There were also telephone records showing contact between D1 and members of the chat room.

18.In addition, the judge explained in detail the defence case to the jury and reminded them of it throughout his summing-up to them.  It was pointed out by Mr Bernard Ryan, for the respondent, that the judge went to great pains to ensure that the summing-up was fair and balanced, and on a number of occasions made it clear to the jury that they had to be sure of D1’s guilt before they could convicted him of the count.

D2’s appeal

Grounds 1(a) and (b)

19.It is alleged under this ground that D2 was suffering from withdrawal symptoms at the time he was interviewed by the police.  The judge conducted a voir dire to determine D2’s challenge to the admissibility of his admissions against interest recorded in a police officer’s notebook and his participation in six records of interview.  He also objected to the admissibility of the admissions against interest on the basis that he was promised methadone treatment to alleviate his withdrawal symptoms if he cooperated with the police.  As a result, he participated in the interviews and he signed the declarations which he would not otherwise have done.  It is also alleged that there were facts and circumstances that would have justified the judge exercising his residual discretion to exclude otherwise voluntary statements. 

20.The judge ruled that the out-of-court statements were voluntary and admissible.  He also ruled that there were no other grounds upon which to exercise his discretion to exclude the out-of-court statements. The judge in his ruling concluded that D2 was not suffering from withdrawal symptoms to the extent that he was affected or prejudiced in voluntarily participating in the records of interview.

21.Mr Ryan submits that D2 by this ground of appeal is simply asking the court to reverse the factual findings made by the judge without laying any challenge to the analysis or reasoning of the judge’s ruling.  He further submits that the judge in his ruling considered all the evidence and gave a fair and logical set of reasons for the conclusion he reached that the admissions against interest were voluntary and admissible.

22.I am not persuaded that this ground of appeal is reasonably arguable.  The judge gave a very comprehensive set of reasons addressing the admissibility of the out-of-court statements of D2 and I can find no fault in his reasoning.  Evidence was presented that D2 had consumed drugs prior to his arrest and at the conclusion of his interviews was taken to a methadone clinic.  D2 was interviewed on six occasions over an eight hour period with breaks in between time.  He was asked on each occasion if he was in “good shape” to be interviewed and he answered affirmatively.  D2 presented evidence from a medical expert about his medical condition, particularly the effects of withdrawal symptoms from the consumption of drugs.  At the time, D2 also had an ulcerated injury to his leg, which later required medical attention. 

23.All the matters now being raised in argument were addressed by the judge in his carefully considered and reasoned ruling.  He rejected D2’s evidence as substantially untrue as to the sufferance of withdrawal symptoms and was satisfied beyond reasonable doubt that the admissions against interest were voluntary and not the product of oppression. He also found no basis upon which the admissions should be excluded in the exercise of his residual discretion.

Grounds 2(a) and (b)

24.D2 argues that the two statements of SIP Lo on which his testimony was based, should have been ruled inadmissible by the judge. D2 also submits that the evidence given by SIP Lo was more prejudicial than probative and amounted to usurping the role of the jury.

25.The judge gave a very detailed ruling on the admissibility of SIP Lo’s evidence.  His expert evidence was on the subject of jargon and prices used within the drug trade.  Incorporated in the admitted facts signed by counsel for all five defendants was that SIP Lo was a qualified expert witness on the terminology commonly used in the illicit drugs market in Hong Kong and the street nicknames of dangerous drugs in Hong Kong, in both Cantonese and English, and the average retail prices of illicit drugs in Hong Kong.  Also incorporated in the admitted facts was SIP Lo’s opinion as to the meaning of a number of terms in the illicit drugs market.

26.I find that there is no substance to the complaint about the judge’s ruling on the admissibility of SIP Lo’s evidence. The argument before me amounted to no more than a disagreement with the judge’s decision. 

27.It is also complained that SIP Lo’s evidence that he had prepared “almost over 1,000 witness statements and as far as he knew all of them had been admitted into evidence” was an assertion by SIP Lo which went beyond the boundaries of being an expert.  D2 relies on the Canadian case of Sekhon v R [2014] 1 SCR 272 where a similar comment was ruled by the Supreme Court of Canada not to be “legally relevant”.  The impugned comments of SIP Lo arose in the course of cross-examination by Mr Liu, when he sought to challenge his expertise.  So it is surprising that it is the subject of a complaint, given SIP Lo’s expertise on this subject had been accepted and formed part of the admitted facts.  In the circumstances, these remarks would have had no material prejudicial effect.

28.This ground of appeal is not reasonably arguable.

Grounds 3(a) and (b)

29.It is generally complained that the judge failed to direct the jury in respect of the ingredients of the offence of conspiracy to traffic in a dangerous drug and how the jury should draw inferences concerning D2’s evidence. 

30.Mr Ryan submits that the judge followed the Specimen Directions in Jury Trials in directing the jury in relation to a conspiracy to traffic in a dangerous drug.  He argues that D2’s assertion that the judge failed to instruct the jury what the offence of conspiracy consisted of is misconceived.  He also notes that Mr Liu’s reliance on HKSAR v Haresh Murlidhar Harjani (2019) 22 HKCFAR 446 does not relevantly address the argument under this ground.  He rightly points out the judge directed the jury on the elements of conspiracy to traffic in a dangerous drug with extensive references to the evidence and what was in issue.

31.Mr Ryan further submits that Mr Liu’s reliance on Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149 on the issue of inferential reasoning is misconceived.  I agree.  The judge gave directions on circumstantial evidence and inferential reasoning and there is no substance to the complaint that he gave insufficient specific directions to the jury on how to draw an inference concerning D2’s evidence.

32.I am not persuaded that this ground is reasonably arguable.

Conclusion

33.It follows from the reasons that I have given, that D2’s application for leave to appeal against his conviction is without merit and accordingly is refused.

34.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Mr Bernard Ryan, counsel on fiat of the Department of Justice, for the respondent

The 1^st applicant appears in person

Mr Liu Yuen Ming and Mr Leung Sze Lum, instructed by Bar Free Legal Service Scheme, Hong Kong Bar Association, for the 2^nd applicant