HKSAR v. Chang Ching Lam

CACC 10 /2022

[2023] HKCA 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 10 OF 2022

(ON APPEAL FROM HCCC NO 176 OF 2020)

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BETWEEN

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J U D G M E N T

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1.The applicant pleaded not guilty before Deputy Judge Derek Chan SC (“the judge”) in the High Court to an indictment alleging a single count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant was convicted on 23 November 2021 and, on 3 January 2022, sentenced to 20 years’ imprisonment.

2.The particulars of the indictment averred that on 28 December 2018, at 35^th Floor, Block 1 of Hong Ching House, Kai Ching Estate, Kai Tak in Kowloon, the applicant, together with Wu Guoyi (“Wu”), unlawfully trafficked in a dangerous drug, namely 1 kilogramme of a solid containing 922 grammes of cocaine hydrochloride.

3.On 14 January 2022, the applicant filed a formal Notice of Application for Leave to Appeal against conviction.  The matter was first fixed for hearing in December 2022.  However, that hearing was vacated because the applicant had succumbed to Covid.

The undisputed facts

4.It was admitted by the applicant at trial, by way of two sets of Admitted Facts[1], made under section 65C of the Criminal Procedure Ordinance, Cap 221, that at 23:02 hours on 28 December 2018, she and Wu were intercepted by the police at the lift lobby of the address stated in the indictment.  Upon interception, DPC 7157 found inside a grey paper bag that was being carried by the applicant a green camouflage sweater, wrapped inside of which was a transparent re-sealable plastic bag containing another black plastic bag.  Inside the black plastic bag was a block wrapped in cling film and tin foil, which was later confirmed to be the dangerous drug particularised in the indictment. 

5.The applicant and Wu were both arrested for trafficking in a dangerous drug.  Under caution, the applicant said, in Chinese,「我明白，我冇嘢講」[2].  Apart from the grey paper bag and the items inside, a dark coloured iPhone with the mobile telephone number 6763 6844 registered in the applicant’s name (“the dark iPhone”), and a white iPhone carrying an unregistered prepaid SIM card with mobile telephone number 5530 0361 (“the white iPhone”), were also found on and seized from the applicant.

6.Subsequently, the applicant took part in three video-recorded interviews (“VRI”) with PW1 between 21:19 and 21:49 hours on 29 December 2018 (the 1^st VRI); between 23:20 hours on 29 December 2018 and 00:19 hours on 30 December 2018 (the 2^nd VRI); and between 16:33 and 18:39 hours on 30 December 2018 (the 3^rd VRI) respectively.  The voluntariness of the three VRIs was not challenged.

7.Wu was subsequently charged with, but pleaded guilty to, the same count on which the applicant was tried in the present case.  He was committed to the High Court for sentence.  On the day the applicant’s trial commenced, Wu confirmed his plea of guilty before the High Court.

8.In December 2018, the average retail price of cocaine in Hong Kong was HK$1,035 per gramme.  1 kilogram of cocaine would have been worth, therefore, some HK$1,035,000.

The prosecution case

9.The case for the prosecution essentially relied upon the evidence of a Mr Ching (“PW2”), a GoGoVan driver; the applicant’s three VRIs and three items of CCTV footage covering respectively Wang Man House of Cheung Wang Estate in Tsing Yi, the ESSO petrol station in Yuen Long and Hong Ching House in Kai Tak at the material times.

10.PW2 testified that at about 21:35 hours on 28 December 2018, he successfully competed in respect of an order on the GoGoVan application (“App”) for a two legged journey from Tsing Yi to Yuen Long and then on to Kai Tak at a fare of HK$325[3]. When PW2 called the contact telephone number for the order, which was in fact a mobile telephone number registered in Wu’s name[4], a female voice answered the telephone.  The female instructed PW2 to go to the gate of Cheung Wang Estate in Tsing Yi and wait[5].

11.When PW2 arrived as instructed, he waited for about 5 minutes.  He then saw the applicant and a man, who it was not disputed was Wu, arrive with some pet cages, some with mice in the cages[6]. Wu then loaded the cages onto the rear of the van.  After PW2 had confirmed with the applicant that he was the driver who had taken the order, and had closed the van door, Wu told PW2 to go to Transport Plaza in Yuen Long[7].  When they arrived in the vicinity of Transport Plaza, Wu instructed PW2 to stop the vehicle[8]. Wu got off the van, saying he needed to go to toilet, whilst PW2 and the applicant waited for him in the car.  During the wait, the applicant and PW2 alighted from the van, had a cigarette and chatted about pet mice[9].

12.After about 10 minutes, Wu returned and told PW2 to go to Kai Tak[10], where, upon arrival, the applicant paid PW2 HK$325 in cash[11].  PW2 said the applicant did not ask Wu why he needed to drive to Yuen Long or Kai Tak[12]. PW2 testified that while he himself sat in the driver’s seat, both the applicant and Wu sat in the seat behind, with Wu sitting on the left hand side and the applicant sitting in the middle[13] for each leg of the journey.

13.Relevant CCTV footage showed that the applicant and Wu left Wu’s residence in Kai Ching Estate empty handed at 20:17 hours and arrived at Wang Man House in Tsing Yi at 21:33 hours.  About 16 minutes later, the two left Wang Man House with the applicant carrying two cages and a grey paper bag over her right shoulder.  At 22:18 hours, Wu was seen walking to the toilet of the ESSO petrol station in Yuen Long.  He was wearing a green camouflage sweater until he came out of the toilet.  CCTV footage of Kai Ching Estate showed that the applicant and Wu entered Kai Ching Estate about 39 minutes later with the sweater on top of the items in the grey bag being carried by the applicant over her shoulder. They were then both intercepted by police officers, inside the lift lobby, when they emerged from the lift.

14.In her VRIs, the applicant denied any knowledge of the block of cocaine found in the grey bag she was carrying[14].  The applicant said that, at the time she was taking her pets from Cheung Wang Estate, where she lived, to Kai Ching Estate[15], where Wu lived[16]. The applicant then used the GoGoVan app to call for a van to go from Cheung Wang Estate to Kai Ching Estate but leaving Wu’s telephone as the contact number because her telephone had been suspended owing to a default in the monthly payment[17].  On the way from Cheung Wang Estate to Kai Ching Estate, her mobile telephone received an anonymous call[18]. The applicant then passed the telephone to Wu.  After Wu received the telephone, he told PW2 to go to Yuen Long[19]. Upon arrival at a petrol station, Wu alighted from the van to go to the toilet[20]. The applicant also said that the green camouflage sweater Wu was wearing when he left the van to go to the toilet was taken off and was held in his hand when he returned.  When Wu told the applicant to put the green sweater in a bag for him, she put it into the grey paper bag[21]. The applicant said it was probably the dark iPhone which received the anonymous call before Wu instructed PW2 to drive to Yuen Long[22].

15.In closing submissions, prosecution counsel submitted that the lies told by the applicant in her VRIs showed that she knew that she and Wu were trafficking in dangerous drugs[23].  The two lies referred to were as follows:

(i)  The applicant said in her VRIs that the original trip was from Tsing Yi to Kai Tak.  It was not until Wu took up the anonymous telephone call that the van was diverted to Yuen Long.  However, the order placed with GoGoVan at the outset was from Tsing Yi to Yuen Long, and then to Kai Tak.

(ii)  The applicant said in her VRIs that she could not leave her telephone number as the contact number of the GoGoVan order because her telephone was suspended.  However, both the dark iPhone[24] and the white iPhone[25] were valid and working at the material time.

Defence case

16.The applicant elected not to testify or call witnesses.  Her case was that she had no knowledge of the drugs wrapped inside the green camouflage sweater.  In closing submissions, defence counsel emphasised that her contact with the sweater was only for a brief period of time, when Wu passed it to her in a rolled up state[26]. Moreover, there was no direct evidence as to the applicant’s knowledge of the presence of dangerous drugs[27]. Defence counsel highlighted the fact that PW2 had himself given a previous inconsistent statement in respect of the seating arrangement of the applicant and Wu in the van during the journey and argued that even an honest witness could be mistaken[28]. It was also suggested that the applicant could have mixed things up[29] and made statements in the VRIs, which were contradicted by other evidence.

Summing up

17.In his summing-up, the judge provided directions to the jury on the elements of trafficking in dangerous drugs.  In explaining the concept of possession, directions on joint possession[30] were given. The judge also gave the jury directions on lies[31] after setting out the prosecution’s allegation that the applicant had lied in her VRIs and the relevant evidence[32]. An accomplice warning in respect of Wu’s guilty plea was given and the jury were reminded that Wu’s plea to the same offence could not affect the applicant’s case[33].

Grounds of appeal

18.In her letter filed with the court on 2 November 2022, the applicant advanced a single ground of appeal averring that there was insufficient evidence to support the charge against her.  However, this ground was divided into 7 sub-grounds.  Firstly, neither the applicant’s fingerprints nor her DNA were found on the drugs seized (sub-ground 1).  Secondly, she did not appear in the CCTV footage at the petrol station (sub-ground 2).  Sub-ground 3 avers that there was no evidence showing that she knew that 1 kilogramme of drug was secreted in the sweater handed to her by Wu.  By sub-ground 4, the applicant said that PW2’s evidence should not be used as evidence and should not be accepted because his evidence in court contradicted his statement to the police. Sub-grounds 5 and 6 respectively aver that there was no evidence proving that the applicant had compared the difference between the weights of the sweater with and without the presence of the drugs, and the jury were not provided with the pet supplies in the grey paper bag to compare the weight differences with and without the dangerous drug.  Finally, by sub-ground 7, the applicant argues that although she lied in her VRIs, there was no evidence that she lied for the purpose of exonerating herself or covering up her guilt.

Respondent’s submission

19.In respect of the issue of the absence of fingerprint or DNA evidence, Ms Parwani, on behalf of the respondent, referred to HKSAR v Zhou Limei[34] and submitted that the lack of fingerprints or DNA was at best neutral evidence.  Given that the applicant had already admitted in her VRIs that she had handled the sweater, the fact that her fingerprints were not found on the block of cocaine drug did not assist her.

20.Ms Parwani argued that the applicant’s absence from the CCTV footage of the petrol station had no significant evidential value and was not material. 

21.The issue of inconsistency of PW2’s testimony and his previous statement had already been fully explored at trial and had been traversed in defence counsel’s closing speech.  The judge had also reminded the jury in detail of PW2’s evidence in cross-examination.  Ms Parwani submitted that issue of inconsistency had correctly been left to the jury, who had been properly directed as to how to deal with it. 

22.Ms Parwani submitted that neither the production of the grey paper bag and/or the pet supplies in order to enable the jury to conduct a weight comparison test were necessary.  In her VRI, the applicant explained that she did not find the rolled up sweater handed to her by Wu to be heavier: she just felt that it was thick[35]. Her explanation and her credibility were matters for the jury.

23.Finally, on the issue of lies, Ms Parwani maintained that the evidential value of the alleged lies told by the applicant was carefully summed up by the judge.  The directions were in accordance with the relevant Specimen Direction[36].  Since the jury had been properly directed, the applicant could have no cause for complaint.

Consideration

24.I can deal very simply with sub-grounds 1 and 2.  The absence of fingerprints or DNA on the block of cocaine or its wrapping was neither here nor there in circumstances where, clearly, the applicant did not handle the block but did handle, on her own admission, the sweater enclosing the block, when it was handed to her.  Similarly, the absence of the applicant from certain CCTV footage was not material in circumstances where she did not deny being present.

25.As for sub-ground 3, which can be dealt with together with sub-grounds 5 and 6, these were matters of common sense for a jury to consider on the basis of the evidence adduced.  When the sweater was handed to the applicant, it was rolled up and concealed within it a block of cocaine weighing 1 kilogramme.  This matter was certainly not definitive but it would be rather unlikely that a person, when handed a bundle of what seemed to be a common item of clothing would not wonder why it was rather heavier than it should have been.  As for the relative weights of other things, these were matters for evidence, not speculation.

26.In relation to the discrepancy between PW2’s evidence and his previous witness statement, the judge dealt with this issue very fully and the jury would have been aware of the inconsistency, such as it was[37]. Frankly, I doubt the jury would have regarded this as a very significant matter in their deliberations.

27.None of these matters amounts in my view to a reasonably arguable ground of appeal against conviction.  I turn to the complaint in respect of the direction on lies, which is sub-ground 7.

28.There is no doubt that prosecuting counsel was expressly relying on two specific lies in support of the inference that the applicant knew what she was handling on the night in question[38].  Accordingly, the judge felt it appropriate to give a lies direction after properly raising the issue with counsel prior to his summing-up.  He did so with a very full and fair direction, which conformed with the relevant Specimen Direction on lies[39].  There is nothing in the judge’s directions, which could be said to amount to a reasonably arguable ground of appeal.

29.I have looked through the remainder of the summing-up for any other matters, which might be said to form the basis of a reasonably arguable ground of appeal against conviction.  It was a very fair set of judicial directions and I can see no reasonably arguable ground of appeal against conviction.  The application for leave must, therefore, be refused.

30.The applicant is informed that she has the right to renew her application for leave to appeal against conviction to the full Court of Appeal, but she is also warned that the Court has the power to order the loss of any time which she has served in custody pending the hearing of her appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Audrey Parwani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person