HKSAR v. Kwun Sum Yeung

[English Translation – 英譯本]

CACC 349/2019

[2021] HKCA 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 349 OF 2019

(ON APPEAL FROM DCCC 29/2019)

____________________

____________________

JUDGMENT

Judgment of the Court of Appeal:

Introduction

1.The applicant (Kwun Sum Yeung), Shi Rui Hong (Shi) and Ho Wing Ka (Ho) were jointly charged with two counts of trafficking in a dangerous drug.  The first charge is that the three of them trafficked in a solid of 36 grammes, containing 26.02 grammes of cocaine, at Room 137, Camlux Hotel, 15 Wang Kwong Road, Kowloon Bay (Camlux Hotel) on 26 July 2018.  The second charge is that they trafficked in a solid of 12.7 grammes, containing 7.72 grammes of cocaine, at Room 210 of Camlux Hotel on the same day.  Shi was additionally charged with the third charge of possession of apparatus fit and intended for inhalation of a dangerous drug.

2.Shi pleaded guilty to the first charge and the third charge, but not guilty to the second charge.  Shi stated that he himself personally “trafficked in dangerous drugs” at Room 137, and therefore the first charge had nothing to do with Ho or the applicant.  Shi also stated that Ho committed the offence of trafficking in a dangerous drug by herself at Room 210, and therefore the second charge had nothing to do with him or the applicant.

3.The applicant and Ho pleaded not guilty to both the first charge and the second charge of trafficking in a dangerous drug respectively and were tried before District Judge Yiu (the trial judge).

4.On 29 November 2019, the trial judge found (1) the applicant guilty of the first charge, but not guilty of the second charge; (2) Ho guilty of the second charge, but not guilty of the first charge; and (3) Shi also guilty of the second charge.

5.The applicant and Ho were discontented with the convictions of the first charge and the second charge respectively, and applied for leave to appeal against convictions.

6.On 21 October 2020, Ho notified the court that she abandoned her application, so her application for leave to appeal against conviction of the second charge was dismissed.  On 3 November 2020, a single judge of the Court of Appeal also dismissed the applicant’s application for leave to appeal against conviction of the first charge.

7.The applicant still felt aggrieved and, represented by Mr Andy Hung, made a renewed application, asking the Court of Appeal to grant him leave to appeal against conviction of the first charge.

The prosecution case

8.The prosecution case was that on the day in question, namely 26 July 2018, the police laid an ambush in Room 138, Camlux Hotel.  At around 5:50 pm on the same day, when the applicant left Room 137 of Camlux Hotel, he was intercepted by the police who were lying in ambush.  The applicant told the police that he was staying in Room 210 and that he intended to go to Room 210 at that time.  Since the applicant was holding in his hand a card key to Room 137, the police took the applicant to Room 137 for a search.  At that time, Shi and his 8-year-old son were inside Room 137.

9.The police found on a table in Room 137 the cocaine specified in the first charge and various types of drug trafficking paraphernalia, including a blender, plastic and metal containers, 5 electronic scales, a number of transparent resealable plastic bags and 2 plastic bag-packing devices.  There was white-coloured powder on some of the drug trafficking paraphernalia.  The above dangerous drugs and most of the drug trafficking paraphernalia were openly and casually placed on the table in Room 137, and 2 of the 5 electronic scales were placed inside the safe of Room 137.

10.The police also seized from a washbasin in the toilet of Room 137 consumption apparatus containing liquid cocaine, with Shi’s DNA and fingerprints thereon, and Ho’s fingerprints were found on one of the electronic scales inside the safe.

11.The applicant said under caution to the police, “Ah Sir, I understand.  The dangerous drugs and paraphernalia in the hotel have nothing to do with me.  I only came up to help Ah Hong to take care of his son.  It has nothing to do with me at all.”

12.Subsequently, the police took the applicant to Room 210 of Camlux Hotel for a search.  At that time, Ho was inside Room 210.  After arresting Ho, the police also found upon search in Room 210 the dangerous drugs specified in the second charge and a quantity of paraphernalia for packing dangerous drugs.

13.Information showed that a person surnamed Chan (transliteration) and Shi booked and rented Room 137 from 22 to 25 July 2018, and Shi renewed the rental of Room 137 on 25 July 2018.

14.The CCTV footage of Camlux Hotel showed that between the small hours on 26 July 2018 and the arrest of the applicant, Shi and Ho, they had stayed in Room 137 for about 6 hours, 11 hours and 2.5 hours respectively.  Shi and Ho had stayed in Room 210 for about 3 hours and 8.5 hours in total respectively, and the applicant had stayed in Room 210 for about 5 minutes only.  The applicant entered Room 137 alone at 11:16 am on 26 July 2018.  At that time, Shi’s 8-year-old son had just left Room 137 and was taken to Room 210 by a hotel staff member, and Shi opened the door to let him in.  The applicant entered Room 137 at 11:16 am.  After about 3 minutes, he left and went to Room 210. After staying in Room 210 for about 5 minutes, the applicant left Room 210 with Shi’s 8-year-old son and returned to Room 137.  The applicant stayed in Room 137 until nearly 6 pm when he was about to leave, holding the card key to Room 137 in his hand.  He was intercepted by the police when he was leaving.

The applicant’s stance and evidence

15.The applicant did not have much dispute over the prosecution’s evidence, but he stated that he had nothing to do with the activities of trafficking in dangerous drugs in Room 137 and Room 210.  His stance was that Shi trafficked in dangerous drugs by himself in Room 137 and he was present only for taking care of Shi’s son.  However, the applicant did not give evidence for his defence.  He relied on the evidence of Shi in support of his defence.

16.Shi gave evidence that he rented Rooms 137 and 210 at Camlux Hotel according to the instruction of a person named “Shing Gor (transliteration)”.  He said that he used Room 137 for drug trafficking, but he did not know the purpose for Room 210.  Shi said that on the morning of 26 July 2018, he was originally with his son and Ho in Room 137.  Later on, he and Ho left Room 137 to go to Room 210 to “consume” the cocaine in Ho’s handbag, and so he left his son in Room 137.  Shi said that when he left Room 137 for Room 210, he telephoned the applicant requesting him to come and take care of his son.  When the applicant arrived at Camlux Hotel, Shi instructed the hotel staff to give a card key to Room 137 to the applicant for him to enter Room 137, although his son had already been taken to Room 210 to be with him at that time.  Shi said that when he returned to Room 137 at around 12:31, he saw that the applicant was together with his son.  Shi even said that all the dangerous drugs and paraphernalia in Room 137 had already been put into a suitcase or hidden properly.  According to what he said, the drug trafficking enterprise in Room 137 had nothing to do with the applicant.

17.Shi asserted that he and Ho carried out the drug trafficking enterprises respectively in Room 137 and Room 210 “individually”, and Ho even borrowed his electronic scale for use.  Shi denied that he employed Ho to take care of his son for him and said that his son was taken care of by a nanny employed at $1,000 per day.

The verdict of the trial judge

18.The trial judge carefully analysed Shi’s evidence and found that his evidence was contradictory and incredible.  The trial judge specifically pointed out that Shi claimed that he could employ a nanny at a daily wage rate of $1,000, then he would not have been unwilling to pay the rent for another room to spread the risk.

19.The trial judge also pointed out that Shi left Room 137 at around 9:05 am, leaving his son alone in Room 137, but the applicant arrived at Room 137 two hours odd later, at around 11:16.  This showed that Shi did not mind leaving his son alone in Room 137.  The trial judge was of the view that it was improbable that the applicant showed up at Room 137 for taking care of Shi’s son.

20.The trial judge pointed out that when the applicant entered Room 137 in the morning for the first time, there was no one in the room.  Therefore, the applicant definitely entered Room 137 with a card key.  This showed that the applicant could go in and out of that room freely.  The trial judge pointed out that when the police intercepted the applicant for inquiries, he was also holding in his hand a card key to Room 137.  And once the police entered Room 137, a large quantity of dangerous drugs and paraphernalia for packing dangerous drugs were found in the room.  The trial judge stressed that the applicant was in the room for a long time (the entire afternoon) and Shi and his son were even sleeping in the room.  The trial judge rejected the defence’s allegation that the applicant went to Room 137 for the purpose of taking care of Shi’s son.

21.The trial judge accepted the prosecution’s evidence and found on the basis of such evidence that the reasonable and irresistible inference was that the applicant and Shi were in joint possession of the dangerous drugs in Room 137 for the purpose of trafficking.  The trial judge therefore convicted the applicant of the first charge of trafficking in a dangerous drug.

Grounds of appeal

22.Mr Hung, counsel for the applicant, did not object to the trial judge’s findings of facts.  However, he contended that the trial judge did not deal with the issue of “joint possession” properly.

23.Mr Hung stressed that even if the applicant knew and acquiesced tothe dangerous drugs in Room 137 and even if he had the ability to control the dangerous drugs, the prosecution’s evidence was still not sufficient to show that the applicant was indeed in physical possession of the dangerous drugs in Room 137 with someone else. Mr Hung maintained that there was no evidence to show that the applicant had advanced, promoted or encouraged Shi’s control over the dangerous drugs in Room 137.

24.Mr Hung cited HKSAR v Siu Mo Nor, Isis, CACC 409/2004, R v Kousar [2009] 2 Cr App R 88 and HKSAR v Li Jin [2010] 4 HKLRD 614 in support of his stance and maintained that in a case tried by a jury, it was incumbent on the presiding judge, in giving directions to the jury, to make clear to them that “mere knowledge and acquiescence were insufficient, that the necessary control to be proved was control of the dangerous drugs themselves and that an ability to control was to be distinguished from the actual exercise of control”.  Mr Hung stressed that under certain circumstances, if joint possession was to be proved, the prosecution bore the burden of proving that the defendant had done something to advance, promote or encourage his accomplice’s possession of the dangerous drugs concerned.  Mr Hung was of the view that there was no evidence in the present case to show that the applicant had done anything to advance, promote or encourage Shi’s possession of the dangerous drugs in Room 137 for trafficking.

25.In his written submission, Mr Hung also took the view that there was sufficient evidence to support the applicant’s defence that his presence in Room 137 was only for taking care of Shi’s son.  Mr Hung contended that apart from Shi’s evidence showing that the applicant was in Room 137 in the entire afternoon of the day in question.  He also pointed out that the admitted facts showed that Room 137 was booked and rented by a person called “Chan XX” and Shi, for the term from 22 to 25 July 2018, and Shi even renewed the rental from 25 July 2018.  Mr Hung stressed that there were Shi’s fingerprints and DNA as well as Ho’s fingerprints on the items in Room 137, but there was no fingerprint or DNA of the applicant at all.  This showed that the applicant did not necessarily have anything to do with the drug trafficking activities in Room 137.

Discussion

26.The trial judge specifically rejected the applicant’s allegation that he showed up at Room 137 for taking care of Shi’s son, and also explained the reasons for reaching that decision.  As the trial judge correctly pointed out, Shi’s son had been left alone in Room 137 for a long time, which showed that he did not need someone to take care of him particularly.  When the applicant arrived at Camlux Hotel, Shi and his son were both in Room 210.  It was improbable for Shi to instruct the hotel staff to give a card key to Room 137 to the applicant, especially when there were a large quantity of dangerous drugs and drug trafficking paraphernalia in Room 137 at that time.  If Shi called the applicant to the scene to take care of his son, he should have instructed the applicant to go to Room 210 to look for him, and should not have allowed the applicant to obtain a card key to Room 137 to enter Room 137 by himself. The trial judge stressed that Shi, after returning to Room 137 at around 12:31, all along stayed with his son in Room 137, and hence he did not need anyone else to take care of his son in Room 137 at all.  Besides, according to what Shi said, his son could be taken care of by his mother or the nanny he employed. It was improbable for him to place his son in the hotel room used for drug trafficking.  It was even more improbable to ask a person having no knowledge to take care of his son in the room.

27.In our view, the trial judge’s findings of facts were supported by sufficient evidence and correct.  There was no basis to support Mr Hung’s criticism against the trial judge’s findings of facts.

28.The undisputed evidence proved that someone rented Rooms 137 and 210 of Camlux Hotel for drug trafficking.  Those who rent hotel rooms for such a serious crime for drug trafficking will definitely conceal the crime by every means, and hence the names the drug traffickers used to rent the rooms will not be significant at all.

29.The fingerprints and DNA on the dangerous drugs and packing paraphernalia involved in the case are of course relevant factors.  However, the absence of the applicant’s fingerprints or DNA on the dangerous drugs or packing paraphernalia does not mean that he had nothing to do with the incident.

30.The focus of the case is whether or not the prosecution’s evidence (the majority of which was not in dispute) was sufficient to lead to the only reasonable and irresistible inference that the applicant and Shi were in joint possession of the dangerous drugs in Room 137.  If they were in joint possession of the dangerous drugs, in the circumstances of the present case, their purpose would definitely be trafficking.

31.The fact that a defendant knows the existence of the dangerous drugs, and even knows that the other person is trafficking in the dangerous drugs does not mean that the defendant is also in possession of the dangerous drugs or has taken part in the trafficking in the dangerous drugs.  However, whether or not a defendant is in possession of the dangerous drugs or has taken part in the drug trafficking must depend on the facts of the individual case, including the relationship with the individual suspect.

32.The defendants in the three cases cited by Mr Hung were all cohabiting spouses or intimate partners of the main offenders.  Those defendants knew the crimes of their spouses or partners and did not reveal their crimes.  It may only show that they were putting up with it in silence.   It does not necessarily mean that they also took part in the crimes.  It is not difficult to understand the above circumstances.  As Line J pointed out in paragraph 17 of the judgment of Li Jin:

“We would point out that the need for something more than knowledge and acquiescence is a matter of real importance in the context of joint possession between husband and wife. Criminals have spouses. They will know their spouse’s vices but it is not part of the criminal law to render them guilty without something more than merely putting up with it.”

(An unofficial Chinese translation of the preceding paragraph also appeared in the original text.)

33.If the applicant did not take part in the crime of drug trafficking in Room 137, there would be no need for him to keep going in and out of or to stay for a long time in Room 137, which was used for drug trafficking.  There was no reason for the applicant to put up with Shi’s crime in silence.  Even if the applicant chose not to reveal Shi’s crime on his own initiative, he should have taken appropriate steps to sever himself from Shi’s crime.

34.In the present case, the trial judge drew an inference on the basis of the factual evidence that he adopted and found that the applicant and Shi were in joint possession of the dangerous drugs found upon search in Room 137 for the purpose of trafficking. The trial judge did set out in detail the evidence that he relied on, including that the applicant could go in and out of Room 137 freely, and after staying in that room for as long as six hours odd, he left while holding in his hand a card key to Room 137.  The police used the card key that the applicant had been holding in his hand to enter Room 137 and found a large quantity of dangerous drugs and drug trafficking paraphernalia placed casually in Room 137, while Shi and his son were even sleeping in the room at that time.

35.We would like to repeat the following decision made by the single judge of the Court of Appeal when dismissing the applicant’s application for leave to appeal:

“15. The trial judge rejected the evidence of Shi Rui Hong, and found that he rented two rooms of Camlux Hotel for the purpose of drug trafficking. In my view, if he needed someone else to take care of his son, it was improbable for him to have a person having no knowledge of the incident at all take care of his son for a long time in Room 137. Wasn’t there somewhere else convenient for him to do so, and he had to have a person having no knowledge be with his son for a long time in Room 137, which was full of dangerous drugs and drug trafficking paraphernalia and apparatus for consuming dangerous drugs?

16. I cannot disregard the undisputed evidence showing that the dangerous drugs and drug trafficking paraphernalia involved in the case were placed openly and casually on the table in Room 137 and that there was other apparatus for drug consumption in the toilet. Nor can I disregard the fact that when the applicant was in Room 137, he definitely could observe the circumstances in which the dangerous drugs and paraphernalia for drug trafficking / consumption appeared in Room 137.

17. It was improbable for the drug traffickers in the case to allow a person having no knowledge of and not taking part in the drug trafficking enterprise to go in and out of Room 137 and Room 210 used for drug trafficking at will and to stay in Room 137 for a long time. Didn’t they fear that their crime would come to light?

18. The applicant could go in and out of Room 137 at will and also stayed in Room 137 for a long time. He definitely could see that the dangerous drugs and drug trafficking paraphernalia involved in the case were placed casually in Room 137. If he did not take part in the act of drug trafficking concerned, he definitely would have avoided suspicions and left Room 137, and would not have gone in and out at will or stayed in Room 137 for a long time.

19. In my view, the drug traffickers in the case, including the applicant, were only using an 8-year-old child to conceal their criminal enterprise, and hoping to use the child as an exculpatory excuse after the incident had come to light.

20. In my view, according to the evidence, the majority of which was not in dispute, the inference that the applicant had knowledge of and took part in the drug trafficking crime in Room 137 was absolutely the only and irresistible inference, especially when the applicant elected not to give evidence and there was no other admissible evidence to explain, undermine or rebut the prosecution’s evidence.”

36.We concur with the above observations and are of the view that when the applicant did not give evidence and there was no other accepted evidence to undermine, rebut or explain the prosecution’s evidence, the inference that the applicant and Shi were in joint possession of the dangerous drugs in Room 137 for the purpose of trafficking was reasonable and irresistible.  We have to stress that there were quite a lot of suspicious matters in the case that needed the applicant’s explanation.  When the drug trafficker was trafficking in dangerous drugs in Room 137 for a long time, why could the applicant obtain from the drug trafficker and be in continuous possession of a card key to Room 137?  Why did the applicant choose to and was allowed to stay in Room 137 for a long time? Why did the applicant still not take any action to avoid suspicions when he saw a large quantity of dangerous drugs and drug trafficking paraphernalia casually placed in Room 137?

37.We cannot disregard the fact that when the applicant left Room 137, he was still holding a card key to Room 137 in his hand, and it showed that he intended to return to Room 137. When the applicant elected not to give evidence to explain such unreasonable matters, the court could use the applicant’s “silence” to strengthen the inference adverse to him (see Li Defan & Another v HKSAR (2002) 5 HKCFAR 320).  In our view, taking into account the facts of the present case, the trial judge’s inference that the applicant was trafficking in dangerous drugs together with Shi in Room 137 was reasonable and correct.

38.In our view, the conviction of the applicant of the first charge is a safe one.  Therefore, we dismiss the renewed application made by the applicant for leave to appeal against conviction and uphold the original conviction.

Ms Audrey Parwani, Senior Public Prosecutor, of the Department of Justice, for the respondent

Mr Andy Hung,instructed by K. B. Chau & Co., Solicitors, assigned by the Legal Aid Department, for the applicant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.