HKSAR v. Cheung Hoi Pun

CACC 8/2022

[2022] HKCA 1875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 8 OF 2022

(ON APPEAL FROM HCCC NO 264 OF 2020)

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Before:  Hon Macrae VP in Court

Date of Hearing:  15 December 2022

Date of Judgment:  15 December 2022

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J U D G M E N T

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1.The applicant faced two counts of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Counts 1 and 3); and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance (Count 2). He pleaded guilty to Count 2 on 21 December 2021, and was convicted on Counts 1 and 3 after trial by a jury before Campbell-Moffat J (“the Judge”) on 30 December 2021. On the following day, he was sentenced to a total term of 17 years and 9 months’ imprisonment. He now seeks leave to appeal against his convictions in relation to Counts 1 and 3.

The prosecution case

2.The applicant was alleged, together with Chan Ying Hong, to have trafficked, on 3 October 2019, in 499 grammes of a solid containing 381 grammes of ketamine (Count 1); and 1.719 kilogrammes of a solid containing 1.493 kilogrammes of ketamine (Count 3). Chan Ying Hong (“PW1”) pleaded guilty and testified for the prosecution at the applicant’s trial.

3.PW1 testified essentially that he had dealt with the dangerous drugs on the instructions of the applicant[1]. In the morning of 2 October 2019, as instructed by the applicant, he had collected a carton box containing about 3 kilogrammes of ketamine (which was further concealed in milk powder boxes) from a GoGoVan, checked into a room at Winland 800 Hotel (“Winland Hotel”) at Tsing Yi at noon, and gone to the applicant’s home in Tin Shui Wai at about 9 pm, where he spent the night. The applicant gave PW1 $1,000 in order to settle the charges for the delivery and the hotel room. On 3 October 2019, they each took some equipment from the applicant’s home to Winland Hotel, which included electronic scales, a sealing machine, plastic bags, empty pet food foil bags and a rice cooker, for the purpose of dealing with the dangerous drugs. When they were unable to extend their stay at Winland Hotel, since there was no available room, they moved to the nearby Rambler Garden Hotel (“Rambler Hotel”), which the applicant managed to book for 3 days using his own credit card but PW1’s name and Identity Card number. They checked into Room 2355. Having done so, they went out from the room on several occasions in order to buy food and some further equipment, such as Ziploc bags, paper plates and gloves. They then re-covered the drugs in three of the six milk power boxes, divided them into smaller quantities, weighed the drugs, and placed them in Ziploc bags, marking their respective weights. The applicant took photographs of the Ziploc bags and sent the photographs to another person to check if the packaging had been done correctly. The Ziploc bags were further concealed within pet food foil bags and sealed.

4.There were two sets of admitted facts[2], in which the following facts and circumstances were admitted, namely:

(i)  The movements of the applicant and PW1 inside Rambler Hotel, including their checking in and the four occasions they went in and out of the hotel together on 3 October 2019;

(ii)  The arrests of the applicant and PW1 and the seizure of the drugs. At about 8:23 pm, the two men were both arrested at Rambler Plaza, Tsing Yi. At that time, PW1 was carrying a bag[3] containing the drugs particularised in Count 1 (which was concealed inside a packet of cat food (Exhibits P1-3[4])). The retail value of these drugs was HK$246,007. The applicant was escorted back to Room 2355. The drugs particularised in Count 2 were then found in a wallet carried by the applicant. The drugs particularised in Count 3 were found in Room 2355 and their retail value was about $847,467; 

(iii)  The applicant’s left thumb fingerprint was found on the toilet door inside Room 2355;

(iv)  The applicant’s mobile telephone contained photographs of Room 2355 and the drugs (Exhibit P99A);

(v)  The applicant and PW1 had exchanged frequent calls, texts, and telephone messages via WhatsApp from February 2019 up until the date of arrest.

5.The prosecution relied on the applicant’s admissions recorded in Customs Officer 0758 (“PW2”)’s notebook as a mixed statement, although the admissions were disputed[5]. In respect of Count 1, the applicant was recorded as saying, inter alia, that[6]: PW1 was his friend and was carrying “cat food” at the time of the arrest; and he himself had come down from Room number 2355 in Rambler Hotel, but he did not know who had hired the room. In relation to Count 3, the applicant said he knew nothing about the drugs; as for the substance in the packaging in the paper boxes, it was milk powder and not his. In relation to the packaging equipment and tools, he said he did not know about them.

6.The prosecution relied on the following facts: (i) the applicant was with PW1 at the time of arrest; (ii) CCTV footage of the hotel captured the applicant and PW1 coming in and out of the hotel together at various times; (iii) the applicant’s admission that PW1 was his friend; (iv) the applicant’s admission that he paid for Room 2355 for 3 days; (v) the applicant stayed inside Room 2355 on and off for 6 hours; (vi) Room 2355 had a significant amount of drugs inside[7]; (vii) the applicant carried a number of boxes to Room 2355; (viii) there were no personal items necessary for staying overnight inside the room; (ix) the room was awash with dangerous drugs and paraphernalia, including plastic gloves; and (x) the applicant’s mobile telephone had photographs of the drugs, in their weighed and marked states[8].

The defence case

7.The applicant testified in his own defence[9]. He said that he had loaned $1,000 to PW1, and that he knew nothing about the GoGoVan, the 3 kilogrammes of ketamine or the hotels concerned. On 2 October 2019, PW1 had asked him for money and stayed overnight at his place to take drugs together. On 3 October 2019, he gave a rice cooker to PW1 as a gift but brought nothing else out from his home. He was asked to go out with PW1 and was taken to Winland Hotel. PW1 was unable to renew the hotel room and asked him to find a room for him in another hotel. He then booked a room for PW1 at Rambler Hotel. He helped PW1 take his things up to Room 2355. He did ask what was inside the box and was told it was milk powder. In the room, he had some rest. About an hour later, they went out shopping together, but he waited outside the shop, so he did not know what PW1 had bought.

8.They returned to the hotel, and the applicant fell asleep after taking some drugs given to him by PW1. He later went out for a walk with PW1, who had to deliver some milk powder to a friend; however, he himself stayed in a shopping mall. They returned to the room, and the applicant further rested until 8 pm. PW1 said he had to go out to meet someone and since he also wanted to see his mother, they left together and were subsequently intercepted by Customs officers. He had no idea what was going on inside the room. The drugs in the photographs were covered up.

9.It was the defence case that PW2 had fabricated the answers allegedly given by the applicant[10].

Ground of appeal

10.There is one ground of appeal and it concerns the judge’s directions on inferences. It is averred that, in the context of the evidence in this case, the inference direction given by the judge was unnecessary, as well as unclear and confusing to the jury; and may have effectively placed a burden of proof on the applicant.

Consideration

11.Having heard from the parties, I do not think it can be argued that such a direction on inferences was unnecessary. If the jury rejected the evidence of PW1, then they were left with other evidence, much of which was accepted or admitted, from which it was clearly possible for them to draw an inference of possessions and knowledge against the applicant. This was a valid position for the prosecution to take, as the judge properly recognised[11]. On the facts as presented to the jury, this aspect of the complaint is not reasonably arguable.

12.However, the remaining part of the ground of appeal, namely that the judge’s direction on inferences is unclear and confusing and that it effectively placed a burden on the applicant, seems to me to be a different issue and not one dependant on the facts of the case at all. Whether the judge by her instructions directed the jury to find that an inference in favour of the defence should be “probable or not, highly probably or not”[12] engages a pure question of law and is not affected by the facts or circumstances of the case. Whether the judge then placed an onus of proof on the applicant by her directions is also a question of law. What the judge said, what she meant and how the directions are to be viewed in the context of the other directions in the case as a whole are all matters of law, which do not depend on the facts or circumstances of the case. Any residual argument as to the application of the proviso would, of course, involve the facts and circumstances of the case and their strength, but the Court would not arrive at that consideration until it has resolved the legal question to be argued.

13.In my judgment, the applicant does not require leave to appeal on the questions of law as to whether the judge’s directions on inferences were unclear and confusing, or placed an effective onus of proof on the applicant. He does, however, require leave on the issue of whether this was a case whose facts and circumstances justified an inference direction in the first place: on that aspect of the ground, I refuse leave.

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Alvin Cheng & Rosaline Choy, assigned by the Director of Legal Aid, for the Applicant