HKSAR v. Fung Chun Yin

CACC 290/2021

[2023] HKCA 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 290 of 2021

(ON APPEAL FROM DCCC NO. 664 of 2020)

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BETWEEN

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Before:  Hon Anthea Pang JA in Court

Date of Hearing:  13 January 2023

Date of Judgment:  13 January 2023

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J U D G M E N T

Introduction

1.The applicant faced a joint charge[1] of trafficking in 8.20 grammes of a solid containing 6.06 grammes of cocaine[2] and stood trial before District Judge Dufton (“the judge”).  Upon conviction, he was sentenced to 3 years and 9 months’ imprisonment.  The applicant now seeks leave to appeal against his conviction. 

The prosecution case

2.In short, the police had an operation in the night of 10 March 2020.  The applicant was seen driving a private car to a housing estate in Sau Mau Ping.  The car was registered in the name of D1’s father and D1 was, at the time, sitting at the rear passenger seat.  When the police searched the car, they found a transparent re-sealable plastic bag containing 9 transparent bags of cocaine at the driver’s door storage compartment (“driver’s door”).  Another transparent re-sealable bag containing 20 plastic bags of cocaine and cash of HK$98,089 were found at the storage compartment between the front seats.  Lastly, on the driver’s seat, a handbag was found inside which were D1’s personal documents, cash of about $3,300 and a chewing gum metal box which contained a plastic bag and a folded banknote, each with a small amount of cocaine.  

3.Upon arrest and under caution, the applicant stated that the car belonged to ‘Ah Kuen’.  The issue at trial was whether the evidence was sufficient for the court to draw the inference that the applicant trafficked in the cocaine found. 

The defence case

4.The applicant elected not to testify and he called no witnesses.  Counsel for the applicant relied on HKSAR v Kon Kwok Cheung[3] to submit that the circumstantial evidence was insufficient to support an irresistible inference. 

Reasons for verdict

5.The judge found that the cocaine at the driver’s door was clearly visible and that the large sum of money, together with the drugs, found in the compartment between the front seats supported the trafficking inference.  He distinguished Kon and concluded that the applicant must have been a party to the possession of the drugs. 

6.Taking into account the quantity (6.06 grammes)  of cocaine and the packing (30 bags)  as well as the absence of evidence to suggest that the applicant was a drug consumer, the judge was satisfied that the applicant possessed the cocaine for the purpose of trafficking. 

Grounds of appeal

7.Mr Frederick Fong, counsel for the applicant both here and below, raises 4 grounds of appeal which essentially boil down to the complaint that the judge erred in drawing the inference that the applicant was a party to the possession of the cocaine for trafficking. 

8.In his ground 1, Mr Fong submits that there was no or insufficient evidence to suggest that the applicant must have seen or dealt with the cocaine.  Ground 2 complains that the judge erred in concluding that the packet of drugs at the driver’s door was clearly visible whereas ground 3 criticises the judge in finding the trafficking element proved.  The final ground 4 is a general ground. 

Consideration

9.While Mr Fong places much reliance on Kon, it is immediately apparent from the facts of Kon that: (i)  the drugs were hidden in the boot of the car and inside a rucksack in the rear passenger seat; (ii) the applicant just returned to Hong Kong “some three hours prior to his arrest” which led the court to observe that “he might have taken the wheel a matter of moments before”; and (iii)  “there was overwhelming evidence connecting possession of the drugs with D1, most particularly the fact that he owned the vehicle and that his finger and palm prints were on items which were in close proximity to the drugs”, all of which were absent in the present case. 

10.We have repeatedly said that it would serve no useful purpose for counsel to seek to make a comparison between cases and to then rely on certain observations made by the court in one particular case to suggest that they are equally applicable in the instant case.  As pointed out above, while the general picture of the applicant’s arrest may bear some resemblance to Kon’s case, there are features which were peculiar to Kon and absent here.  Further, the judge’s attention had been specifically drawn to Kon and, unlike the trial judge in Kon, he had provided detailed reasons as to how he reached his conclusions. 

11.My assessment is that based on the evidence before the judge, he was fully entitled to make the current findings which were logical conclusions in line with common sense in reliance on the facts proved.  There was nothing objectionable about his conclusions. 

12.Ground 1 has no merits. 

13.Ground 2 is wholly unarguable when one examines the photographs exhibited at trial.  The bag of the drugs was placed in the open at the driver’s door and as accepted by the judge, according to PW2, the only other item with the strap which was found there was under the bag.[4]  In the circumstances, the judge’s finding that the bag was clearly visible to the driver could not be faulted.  Although Mr Fong suggests that the position and angle of the viewing by the driver would be different from those of the photographer, in my view, the significance of this piece of evidence is the open manner in which the bag was stored, that is, easily visible to the driver who would not only be sitting next to that compartment but would necessarily need to open and shut the driver’s door.  As observed by the judge, it would be inherently improbable that anyone would be allowed to drive the car with the drugs kept in that manner unless the driver was a party to the possession of the drugs. 

14.What remains is ground 3 which can be dealt with shortly.  I do not see how cases like Chan Chuen Ho v HKSAR[5]and HKSAR v Lee Chun Tat[6] could be of assistance to the applicant.  As pointed out by the then Chief Justice in the case of Lee, it is important to bear in mind that, in Chan, the court was considering the application of the proviso, not whether the judge was entitled to draw the inference.  On the evidence before the judge in the present case, my view is that he was perfectly entitled to draw the trafficking inference and no complaint could properly be made.  With respect, this ground is devoid of merits and should not have been advanced. 

15.Given my assessment above, I see nothing wrong with the conviction and the general ground 4 is not tenable. 

Conclusion

16.For the reasons given, the application for leave to appeal against conviction is refused. 

17.The applicant could renew his application before the Court of Appeal but a warning is now given to him that should he do so, and should the Court of Appeal find no merit for the renewal application, the Court of Appeal may order loss of time which the applicant has spent in custody pending his appeal. 

Ms Janice Cheuk, SPP, of the Department of Justice, for the Respondent

Mr Frederick Fong, instructed by Ip Kwan & Co., assigned by the Director of Legal Aid, for the Applicant