HKSAR v. Chiu Man Chun

HCCC 144/2021

[2022] HKCFI 2925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 144 OF 2021

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Before:  Recorder Derek Chan SC in Court

Date of Hearing:  16 September 2022

Date of Decision:  23 September 2022

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D E C I S I O N

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1.The defendant was charged with one count of trafficking in a dangerous drug and was tried by a jury. The defendant was acquitted and applies for costs of the trial under section 5 of the Costs in Criminal Cases Ordinance, Cap 492.

SUMMARY OF FACTS

2.On 22 June 2020, the defendant went to Asia Airfreight Terminal 1, Hong Kong International Airport, to collect two pieces of cargo. The defendant used a “Gogovan” to travel from Lido Garden, Sham Tseng, to the Terminal. The defendant then asked the “Gogovan” driver to wait for him, as he went up to the office of Asia Airfreight Terminal Co Ltd.

3.At about 16:28, the defendant presented his Hong Kong Identity (“HKID”) card and a Letter of Authorization that the defendant himself wrote, and signed, in the name of Leung Ka-fai, purporting that Leung Ka-fai had authorised him to collect the relevant cargo (“Letter of Authorization”). The Letter of Authorization also contained a printout of an image of the HKID card of Leung ka-fai, and described the goods to be collected as martial arts supplies. The defendant also filled in a pro-forma Letter of Clarification stating that no import licence was required for the cargo. He then paid the cargo collection charge of $53. The two pieces of cargo were then transported to the Import Cargo Examination Hall for customs clearance. The defendant was given copies of the air waybill (which described the goods as “traditional goods”), an invoice, and a shipment release form. He took these documents to the Import Cargo Examination Hall.

4.At about 16:40 at the Import Cargo Examination Hall, the defendant presented his HKID card and associated documents to conduct clearance for the two pieces of cargo. Upon examination by the customs officers, 1,994.3 grammes of cocaine were found hidden in the wooden products contained inside the two pieces of cargo.

5.At about 17:28, the defendant was arrested and cautioned. Under caution, he made statements in reply. Between 18:00 and 19:00, a customs officer took a post-recorded caution statement from the defendant. Between 19:00 and 21:45, customs officers interviewed the defendant for preliminary enquiry under caution. On 23 June 2020 between 17:49 and 18:37, customs officers further conducted a video recorded interview (“VRI”) with the defendant.

6.The defendant also elected to give evidence in court.

7.According to the defendant, he was initially contacted by an unknown male through a WhatsApp call who offered him a courier job, which would require him to go to the airport to collect goods, and there would be a $1,000 reward. The defendant agreed to it. The defendant was then provided with an image of the HKID card of Leung Ka-fai through WhatsApp. He was later contacted by a Mr Chan who gave him further instructions in respect of the collection of goods from the airport. This Mr Chan also told the defendant to write out the Letter of Authorisation, dictating the words to the defendant over the phone. When arrested, the defendant provided the customs officers with the phone numbers of the unknown male and the “Mr Chan”. The defendant stated that he thought the cargo that he was to collect contained martial arts supplies, as that was what he was told by both the unknown male and Mr Chan. He said he did not know there were dangerous drugs hidden insider the two pieces of cargo. The account provided by the defendant to the customs officers after arrest is broadly consistent with the defendant’s evidence in court.

8.As the defendant was acquitted, I proceed with this costs application on the basis that the jury must have found that the defendant was telling the truth, or maybe telling truth, when he said that he did not know what was inside the parcel; that he was simply offered a job by the unknown male and Mr Chan to collect the two pieces of cargo, and therefore acted in accordance with their instructions.

9.There is also no dispute that the defendant had deleted his WhatsApp messages with the unknown male. In the VRI, the defendant was asked why he had deleted the WhatsApp messages, to which the defendant replied that it was the unknown male who asked him to do so, with no reason provided. In his evidence, the defendant stated that he did not ask why the messages had to be deleted, and explained that he himself also thought that the messages should be deleted since someone else’s HKID card details were left there.

10.In respect of the Letter of Authorisation which was written by the defendant himself, signed by the defendant using the Chinese characters “Leung Ka-fai”, and purporting that Leung Ka-fai had authorised the defendant to collect the goods in question, the defendant explained that he thought that he had the authority to sign in the name of Leung Ka-fai since he had been given his HKID card and was told by Mr Chan to collect the goods.

11.There is no dispute that the defendant had never met the unknown male, the person who claimed himself to be Mr Chan, or “Leung Ka-fai”.

DISCUSSION

12.The leading authority on costs in criminal cases is the Court of Final Appeal case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531. The relevant principles, as recently confirmed by the Court of Final Appeal in HKSAR v Chan Kam Ching [2022] HKCFA 13, may be summarised as follows.

13.The courts are given a broad discretion regarding such costs. Upon an acquittal, the court normally makes a costs order in favour of the defendant unless there is a positive reason for departing from that rule. Such a reason is frequently found to exist where the defendant has brought suspicion on himself, leading to the prosecution. This may be due to that person’s conduct in the course of the investigation or during the trial, but the discretion is not bounded by any inflexible rule. Conduct of the defendant prior to the investigation and trial stages, including conduct providing the setting for such charges, may have invited suspicion and may be taken into account in the exercise of the discretion.

14.As stated by the Court of Final Appeal in Ting James Henry v HKSAR [1], at paragraph 16:

“16. It may often be the case that a defendant’s conduct during the investigation and at the trial is such that it brings suspicion on himself, providing a ground for refusing him costs. Such conduct has been described as ‘most relevant’ to the discretionary exercise. However, it is incorrect to suggest (and the authorities give no warrant for suggesting) that a defendant can only be regarded as having brought suspicion on himself by virtue of his conduct during the investigation or at trial and not otherwise. The discretion is not bounded by any such inflexible rule. By his conduct prior to the investigation and trial stages, including conduct which formed part of the setting for the charges laid against him, the defendant may plainly have brought suspicion upon himself. There is no reason to ignore such conduct in the exercise of the court’s discretion on costs following an acquittal on the charges laid, provided always that the discretion is not exercised so as to undermine the presumption of innocence, and in particular, provided that its exercise does not involve the court in adopting a position at variance with the defendant’s acquittal by the tribunal of fact.” (Emphasis added)

15.In the present case, I accept that from the very moment of his arrest, the defendant already gave an account to the customs officers that is largely consistent with his subsequent defence, which included the provision of the phone numbers of the unknown male and Mr Chan to the customs officers. Whilst the defendant was selective in answering questions from the officers in the VRI, he was entitled to exercise his right to silence. A person’s exercise of his right to silence is not to be treated as bringing suspicion upon himself.

16.However, I am of the view that the defendant brought suspicion upon himself for two reasons. Firstly, the defendant wrote, and signed, the Letter of Authorization falsely purporting itself to be an authorization from Leung Ka-fai. Even on the defendant’s own account, he had never seen or spoken to anyone claiming himself to be “Leung Ka-fai”. Secondly, the defendant deleted the WhatsApp messages between himself and the unknown male.

17.Regardless of whether the defendant himself believed that he was “authorized” to sign in the name of “Leung Ka-fai” or whether he himself considered there to be proper reasons for deleting the WhatsApp messages, his conduct brought suspicion upon himself especially when viewed in the context of the defendant simply being asked to collect goods by two persons with whom he had never met. As observed by the Court of Appeal in HKSAR v Tsim Hiu Yee [2019] HKCA 1097 at paragraph 35:

“In respect of the former we noted that at the time she engaged private legal representation the forensic report was not available but it was known that the appellant had deleted messages from her phone. This resulted in an absence of evidence that would support her case and the presence of evidence, namely her conduct in destroying her communications with her handler, which enabled an inference of knowledge that what she was transporting was a dangerous drug, to be more readily drawn. By her conduct she brought suspicion on herself and misled the prosecution into thinking that the case against her was stronger than it was.”

DISPOSITION

18.For the above reasons, I refuse the defendant’s application for costs.

Mr Francis Lo, on fiat, for HKSAR

Mr Adonis Cheung and Mr Esmond Wong instructed by Messrs Tam and Partners, for the Defendant