HKSAR v. Cheng Wai Kit

[English Translation - 英譯本]

CACC 24 /2019

[2022] HKCA 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 24 OF 2019

(ON APPEAL FROM HCCC NO 28 OF 2017)

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REASONS FOR JUDGMENT

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Hon Anthea Pang JA (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant faced one count of manufacture of a dangerous drug^[1] and one count of trafficking in dangerous drugs^[2]. He was tried before Deputy High Court Judge Anthony Kwok (the judge) sitting with a jury. Upon conviction of both counts, the appellant was sentenced to a total of 17 years’ imprisonment.

2.The appellant appealed against the conviction and applied for leave to appeal. A single judge granted leave^[3] on the first and second grounds of appeal.

3.After the hearing, we dismissed the appeal and these are our reasons.

The Offences

4.It was alleged in the first count that the appellant unlawfully manufactured cocaine at Room 11, Ring Wood Guest House, Tsim Sha Tsui, Kowloon on 9 August 2016.

5.In the second count, it was alleged that, at the same place and time, the appellant unlawfully trafficked in dangerous drugs, namely 152.92 grammes of a solid or powder containing 115.46 grammes of cocaine and 0.13 gramme of a powder containing 0.06 gramme of ketamine.

The Prosecution Case

6.On 9 August 2016, a team of police officers arrived outside Room 11 of Ring Wood Guest House in Tsim Sha Tsui. The first prosecution witness (PW1) knocked on the door and said, “Police, police, open the door”. That lasted about 20 seconds to one minute, but there was no response from the room. Having opened the door with the guest house key card, PW1 saw the appellant sitting in a chair, holding in his left hand a clear plastic cup containing liquids and solids, in which 26.8 grammes of cocaine^[4] were eventually found. Officers also seized a number of items in Room 11, including 34 re-sealable plastic bags and a tissue paper sachet, all of which contained cocaine and ketamine, as well as drug-manufacturing related paraphernalia. A fingerprint^[5] of the appellant on one of the paper boxes containing baking soda was also found. The appellant had cash of HK$10,619.80 and a mobile phone^[6] in his possession.

7.It was also undisputed that the cotton swabs and cups retrieved from Room 11 contained the DNA of Chow and Wong, who were arrested and charged with manufacture of a dangerous drug respectively in 2017, but the charges were subsequently withdrawn by the prosecution^[7].

8.Under arrest and caution, the appellant remained silent.

9.Briefly, the prosecution alleged that the appellant manufactured crack cocaine in Room 11 (Charge 1) and packaged, handled and supplied the finished product and ketamine to others (Charge 2).

The Defence Case

10.The defence argued that the appellant had never manufactured or trafficked in dangerous drugs in Room 11, and that the police had falsely accused him of so doing.

11.The appellant stated that on 8 August 2016, he stayed overnight with his girlfriend in Room 6 (opposite Room 11) of Ring Wood Guest House. The following morning, the appellant left Room 6 and returned to Ring Wood Guest House at about 3 pm. However, when the appellant was outside Room 6, PW1 and two other police officers suddenly forced the appellant into Room 11, where the appellant was stripped and searched. Subsequently, one police officer found a box in the room and asked the appellant to take a look at it. The appellant took the box, looked at it, said he did not know what it was and handed it back to the police officer. The appellant denied having been in Room 11 taking hold of a plastic cup or in possession of dangerous drugs. He did not know Chow or Wong.

12.The appellant stated that he operated a trading company involved in the sale of mooncakes. Since the seller had failed to deliver the mooncakes on time, a refund had to be effected. The $10,000 plus cash he had with him on his person at the material time was the refund^[8] he had received the day before. The appellant also showed the jury some documents to prove that he was engaged in proper business activities^[9].

Central Issues

13.The central issues at trial were, firstly, whether the appellant was in Room 11 holding a plastic cup at the material time as alleged by the police officer; secondly, whether the appellant was manufacturing dangerous drugs in Room 11; and thirdly, whether the appellant was in possession of cocaine and ketamine for the purpose of trafficking. Except for the first issue on which there was direct evidence, the prosecution relied on circumstantial evidence for the remaining ones.

Grounds of Appeal

14.Mr James Tze and Mr Simon Kwok raised two grounds of appeal on behalf of the appellant.

(Ground 1)

15.Mr Tze submitted that the trial judge had misdirected the jury to apply the same standard to the evidence of the prosecution and the defence:

-  The judge directed the jury: “... Thirdly, you must bear in mind that before drawing an inference of guilt, favourable or unfavourable, you must be certain that the favourable or unfavourable inference must be the only reasonable inference. If you are uncertain as to the defendant’s guilt or innocence, then you must find him not guilty.” ^[10] (Emphasis added) (Impugned Direction (1))

-  The judge also directed the jury to “be sure” that the police officer was not telling the truth in order to decide whether to believe and accept the officer’s testimony: “...but, but it all depends on the nature of the omission or the nature of the problem, and if it is really something serious, you don’t think it would have been reasonable for a police officer, for a police officer who has been trained, to make such a low-level mistake and if there is something fishy about it, and they are definitely not telling the truth, then you can consider the situation and determine whether or not their evidence was credible.” ^[11] (Impugned Direction (2)) and

-  The judge directed the jury to consider which of the different versions of the prosecution and defence was true: “But on the premise that firstly, you accept the police officer’s version that the defendant was present in Room 11, and if you don’t accept that as true, remember what the defendant’s version was? The Defendant said that after he was pulled into the room, he was tricked and coaxed like, ‘Take hold of the box and have a look at it’, which was how his fingerprint appeared on the box. This also explains why there was a fingerprint on the box. There were two different situations. Which situation was it? Was it the one told by the prosecution or the one told by the defendant? These are all findings of facts and I can only leave them for you to decide.” ^[12] (Impugned Direction (3))

16.Mr Derek Lau, Acting Senior Director of Public Prosecutions for the respondent, submitted that:

-  Although the judge did state that the inference must be the only reasonable inference be it against or in favour of the appellant, the judge clarified and corrected the related directions after being reminded of them by the defence, and repeatedly stated that the jury must acquit the appellant if both inferences in favour of and against the appellant could be drawn at the same time; therefore, it is unlikely that the jury had misunderstood the relevant legal principle and unlikely to have mistakenly assumed that the inference in favour of the appellant must also be the only reasonable inference; and

-  On the issue of the untruthfulness of the police officer’s testimony and the fingerprint on the paper box containing the soda powder, Mr Lau pointed out that, taking into account the context of the direction, the judge did not require the jury to find the defence version true in order to acquit the appellant, and that he was only inviting the jury to use their common sense to assess the credibility of the police officer’s evidence; furthermore, the judge mentioned repeatedly in his directions given for two days that the burden of proof was on the prosecution and if what the defence said was true or might be true, then the jury could not be sure of the prosecution case.

(Ground 2)

17.Mr Tze submitted that the judge erred in failing to direct the jury on the cash found on the appellant’s person: as the prosecution position was that the large amount of cash found on the appellant’s person related to trafficking in dangerous drugs. The judge should have given Direction 36.1 of the Specimen Directions without which it would be highly likely that the jury might presume that the appellant was guilty of the offence simply because they considered the cash to be proceeds of the appellant’s past illegal drug trafficking, thereby causing injustice to the appellant.

18.The respondent relied on HKSAR v Chung Ka Lun^[13]and R v Graham^[14] to argue that if the issue at trial did not involve the cash on the appellant’s person being referable to past trafficking, the judge did not need to give specific direction on this. Mr Lau further pointed out that the appellant in the present case had said that the cash on his person was a refund he had received in proper business transactions and had nothing to do with drug trafficking and manufacturing, so it would suffice for the jury to simply consider whether the appellant’s evidence was or might be true in relation to the cash seized.

Discussion

Ground 1 (Standard of Proof)

19.In relation to Impugned Direction (1), the judge clearly erred in stating that when the jury drew an inference in the defendant’s favour, it must be the only reasonable inference. However, this error was corrected following concerns raised by defence counsel and was dealt with shortly after the erroneous direction was given, namely within 25 minutes, immediately after the morning adjournment:

(The Jury was excused)

“Mr Yuen: Yes, yes, yes, thank you. And your Lordship, another point is that I don’t know if I have misheard it. Your Lordship has just mentioned that it must be the only reasonable inference to make be it favourable or unfavourable to the defendant, but Your Lordship, to my understanding, it’s only when the jury is going to draw an unfavourable inference against the defendant that it’s necessary…

Judge: Perhaps I have spoken a little too fast.

Mr Yuen: Oh, yes, yes, yes.

Judge: Since it’s what you heard. I will cor—I am willing to correct it.

Mr Yuen: Yes, yes, thank you, Your Lordship. But subsequently, Your Lordship have also mentioned that if they were not sure, they should…

Judge: Yes.

Mr Yuen: …that is to find… him not guilty.

Judge: Right, right, I have also said so.

Mr Yuen: Right, thank you, your Lordship, thank you.

Judge: Perhaps sometimes I have spoken a little too fast.

Mr Yuen: Right.

(Court resumed after the morning adjournment)

Judge: Okay, I will continue. I would like to add that when I talked about the inference just now, I mentioned that once you have considered all the circumstances, you find that you can make both a favourable and an unfavourable finding for the defendant, you cannot draw the one and only reasonable inference because there are two possibilities at the same time, then you have to find the defendant not guilty, do you understand?

…

Remember, you can draw inferences, but it is very important that when you do so, you must draw the only reasonable inference based on proven facts. If the inference you draw can be both in favour of the defendant and against him, like what I’ve just told you when court resumed after the morning break, then you must not reach an inference against the defendant, do you understand?” ^[15]

20.Moreover, the judge made it clear at the beginning of his summing-up that the burden of proof was on the prosecution:

“…However, in this trial, the defendant chose to testify. He was not obliged to do so, it’s just a choice he made simply exercising his right to do so. So the prosecution had the burden to prove that the defendant’s exculpatory account was not true, conversely, the defendant was not required to prove what he said was true…”^[16]

21.Having completed his review of the parties’ evidence, the judge again stated:

“… When you have finished considering the overall circumstantial evidence, you can decide whether the prosecution can prove beyond reasonable doubt that the defendant is guilty of manufacture of dangerous drugs or trafficking in dangerous drugs. If you have reached such an inference, you must find him guilty of both counts; if you cannot reach such an inference and you think that there are other possibilities at the same time, for the reasons I have just given you, or the reasons given by Mr Yuen, if you think that there is a possibility or a reasonable possibility, then you will think that there is a reasonable doubt, and if there is a reasonable doubt, you are of course obliged to acquit the defendant on both counts.”^[17]

22.The judge also took the trouble to remind the jury before they retired for deliberation:

“Although the defendant does not have the burden of proof, if you have heard his evidence, his version, and if you think that what he said is true or may be true, that means the defendant was not, or may not be found in Room 11 holding P3, the plastic cup, as the police put it. Do you understand? As long as you think what he said is true or may be true, there is no way you can be sure of what the police said was the truth.

That is to say, if in this situation, it is also impossible for him to be involved in the manufacture of dangerous drugs in Room 11, and it is also impossible for him to be in possession of the cocaine or ketamine in Room 11 for the purpose of trafficking, so you have to acquit him. So as long as you discuss it and you come to the conclusion that the account that he told may be true, then you could acquit him.”^[18]

23.Mr Tze’s complaint in relation to Impugned Direction (1) can therefore be said to have been taken out of context and is unsubstantiated.

24.Similarly, the judge pointed out immediately after his Impugned Direction (2):

“Of course, in considering this question [police officer’s testimony], you will also take into account the defendant’s testimony. The defendant has testified before you, right? I will talk about the defendant’s evidence in detail later on. But remember, it is not the defendant’s responsibility to prove anything, so even if you have heard the defendant’s testimony, if you believe it, then you have almost reached your conclusion, if you think the defendant’s story is true or may be true, then certainly it is impossible for you to be sure of what the police officer has said. You for sure don’t believe that the defendant has been found in Room 11.” ^[19]

25.Indeed, the principle that if a defendant’s story may be true, then the prosecution cannot prove its case was also apparent in the closing submissions of prosecuting and defence counsel.

26.At the time, counsel for the prosecution said:

“In this case, the prosecution will say that the defendant would like you to think or believe that he has not committed any crime, but I will ask you in this way, that is, do you think that the defendant’s case is true or may be true? I will only point out to you that the defendant’s case is not and cannot be true, and I will point out to you that only the prosecution case is the truth.

…

…Do you think that the defendant’s evidence is true or possibly true? If it is true or may be true, the defendant should be found not guilty. However, you should remember that I have already pointed out to you that the defendant’s evidence could not be true, nor might it be true.” ^[20]

27.Counsel for the defence, on the other hand, stated:

“Okay. You may then ask. What’s the point of the defendant appearing in court to give evidence? The significance of this is if you accept the defendant’s version on a point of contention is true or may be true, then the prosecution will certainly not be able to succeed in proving its case. Even if you do not accept the defendant’s version is true or may be true, it does not mean that you have to automatically or inevitably convict the defendant, you still need to examine whether the prosecution has succeeded in proving its case …” ^[21]

28.In other words, the jury could not have been under the misapprehension that they had to be satisfied that the police officer had lied in order to reject the evidence or to accept the appellant’s account.

29.Secondly, as pointed out by Mr Lau, based on the context of Impugned Direction (2), the judge did not require the jury to be “sure” that the police officer had lied, but just inviting the jury to apply their common sense and to consider the defence criticisms of the police officer’s testimony in order to assess whether the evidence was credible.

30.As to Impugned Direction (3), the judge further pointed out:

“The defence has also just pointed out that other than the box, no fingerprints were found on the other items, and as I’ve just said, what is the significance of this? ... but also bear in mind that the defence version, the accused’s version, is that he was actually not in the room. If you think what he said may be true, then it also explains why his fingerprints were not found on any other things and his version is that he was requested to leave his fingerprint on it. So if you accept what he said, then it also counters the prosecution version about the fingerprint. So when you consider it, you have to take into consideration of the whole picture.” [22]

31.It follows that, when the whole of the direction is considered, there is no question of Mr Tze’s suggestion that the judge had misled the jury into believing that they had to be sure that the defence case was true in order to acquit the defendant. This case is not comparable to Jim Fai v HKSAR[23], Liberato and Others v The Queen[24] and HKSAR v Mosen[25] on which Mr Tze relied. The judge in this case gave full and repeated directions on the burden and standard of proof with which the jury must have become familiar and there could have been no confusion.

Ground 2 (The Cash on the Appellant)

32.Direction 36.1 of the Specimen Directions is as follows:

“The prosecution has called evidence that the defendant [eg. was found to be in possession of $...] (and/or to the effect that he) [was living to a standard which they suggest was much higher than that which might be expected of a man of his means].

That evidence, if you accept it, does not by itself prove anything against the defendant. However, if you are sure that:

(a) the defendant was indeed [in possession of this money and/or living to a standard much higher than might be expected in all the circumstances of the case];

(b) the defendant’s explanation for the [money][standard of living] is untrue; and

(c) the [money][standard of living] can only be explained by continuing unlawful trafficking in drugs as opposed to unlawfully trafficking in drugs in the past,

you may, if you think fit, take that evidence into account when deciding whether the defendant was unlawfully trafficking in drugs as alleged in the indictment.”

33.Relying on the above direction and R v Morris[26], Mr Tze argued that in the present case, the prosecution case was strengthened by the assertion that the money on the appellant’s person related to trafficking in drugs, yet the judge failed to remind the jury of the need to be sure that the money in question was the result of the appellant’s “continuing unlawful trafficking in drugs” before this evidence could be used to support the appellant’s commission of the offence, resulting in a miscarriage of justice.

34.We have a number of observations in respect of Mr Tze’s complaint.

35.The facts in Morris showed that the defendant, when rounded up by the police in front of her parents’ house, allegedly dropped her belongings at once (including a carrier bag, a handbag and a purse containing a total of £6,000 in cash) and allegedly rushed upstairs to lock herself in a toilet, where the police eventually seized a quantity of heroin in her bra, some other cash and an accounting book from her own home. The defendant denied possession of the heroin and the carrier bag and said that the cash and the accounting book had nothing to do with trafficking in drugs.

36.Firstly, it is worth noting that in Morris, the prosecution and the defence disputed the admissibility of the cash and the accounting book seized, but the judge, after allowing the prosecution’s application, told the jury when summing-up the case that the cash and the accounting book were peripheral matters and did not further deal with them. However, in the present case, the cash found on the appellant’s person was produced by means of admitted facts. The defence also proactively enquired about the source of the cash in examination-in-chief in order to show that the appellant was engaged in proper business activities. As the defence in the present case relied on the cash as part of its case, in contrast to Morris where the defendant denied having carried a carrier bag containing a large amount of cash, it is inappropriate to make any direct comparison between the two cases or to rely on the English Court of Appeal’s decision in Morris to suggest that the judge’s direction in the present case was inadequate. 

37.Secondly, as a matter of fact, the prosecution’s cross-examination did not focus on the cash found on the appellant, but covered generally the items found on his person, including the telephone and the memory card:

“Q: Defendant, I have some bits and pieces to ask you, okay?

A: Oh, yes.

Q: You had about HK$10,600 on you that day, hadn’t you?

A: Yes.

Q: Was it a big amount for you, ten thousand plus Hong Kong dollars?

A: No.

Q: A small amount?

A: Just a usual amount.

Q: Why did you go out with ten thousand plus dollars on your person?

A: I always do.

Q: How did you obtain or earn the ten thousand plus dollars?

A: What? Well I al—always carry the money for the goods with me. I always have ten thousand plus dollars with me, almost every day.

Judge: What money did you say you always carry with you?

A: That is the money for the goods.

Judge: The money for the goods.

Q: Have you ever thought of depositing the cash into the bank?

A: For an amount generally not exceeding $50,000, I won’t think of putting it into the bank.

Q: Next question. I asked you this morning, about 11665, the young man.

A: Yes.

...

Q: Yes. I only have a few more questions. I’d also like to put a few things to you to which you can agree or disagree, okay?

A: Okay.

Q: It’s paragraph 5 of the Admitted Facts, just a reminder to you.

A: Oh.

Q: It was found on you—paragraph 5, starting from page 6, ten thousand plus Hong Kong dollars, a telephone, a SIM card and a memory card, right?

A: Found on me?

Q: Yes.

A: This is right.

Q: These few things are in connection with your trafficking in drugs and/or transporting drugs. Do you agree?

A: No, disagree.” [27]

38.Similarly, the prosecution did not suggest in its closing submissions that the cash in the appellant’s possession alone was sufficient to support the contention that he had actually committed the offence:

“In this case, we come to the third part of my submission, which is about the prosecution case. In this respect, of course, there may be some overlapping or repetition of what I have said before, but I’d like to emphasize a few points about the prosecution case. There are a few points about the prosecution case that I would like to ask you to consider, in particular, about the evidence. As it was said before, the first point is that a lot of drugs were found in this case, a lot of re-sealable plastic bags, some with drugs, some without. In this case, HK$10,000 plus in cash was found on the defendant, an electronic scale was found, and drug was found on a $100 banknote and a $10 banknote. Should such evidence be considered by a jury, especially the charge of trafficking in dangerous drugs? I would suggest that the reason why a trafficker of dangerous drugs would have so many plastic bags is because he packaged the drugs, passed it on for people to consume, selling them on the street. ...” [28]

39.In respect of the judge’s summing-up, it also did not focus on the cash found on the defendant:

“The second point is that the drugs have been packed in 33 transparent plastic bags. Remember Mr Hui has told you, ‘Why were there so many small plastic tapes and packets? Only would one see so large a quantity be available in a pharmacy selling medicine, but why would an ordinary citizen have so many plastic bags in his room? The plastic bags were so coincidentally placed beside the cocaine in solid form. Not only that, but there were also the electronic scale, bank cards and powder.’ The prosecution argued that all of these, all of these adding up together could indicate that someone was manufacturing cocaine in the room, and that after manufacturing, the cocaine in granular form was packed and then sold for profit. The prosecution also asked you to consider the value of this batch of drugs, $180,000 plus. Besides, cash of ten thousand plus dollars was also found on the defendant’s person. Mr Hui said it related to trafficking.” [29]

40.Further, based on HKSAR v Chung Ka Lun[30]; R v Grant[31]; R v Graham[32]; and R v Harrison[33], we consider that the following could be made:

(I)      Whether the Court needs to give a special direction to the jury in respect of the cash found depends very much on the evidence in the case. The absence of such a direction does not necessarily result in injustice to the defendant;

(II)     The evidential value of the cash in question is that a drug trafficker will receive cash from trafficking and will also store up cash for purchases[34];

(III)    Where necessary, the relevant direction can prevent the jury from considering a defendant’s past acts of drug trafficking as a propensity to commit the offence, and mistakenly believing that a defendant who has trafficked in dangerous drugs in the past is necessarily guilty of the charge in question;

(IV)    Thus, the need for a special direction depends on the evidence in a particular case, and if there is no evidence before the jury at all pointing to the fact that the cash in question was the result of the defendant’s past conduct (“historic origins”), the real issue for the jury is simply whether the defendant’s explanation for the cash is credible or may be credible, and not whether the cash is proceeds from the defendant’s ongoing drug trafficking instead of his former acts of trafficking[35];

(V)     In the context of (IV) above, giving a special direction may unnecessarily complicate the matters and make it difficult for the jury to understand the relevant issues[36]; and

(VI)    If the case involves a conspiracy to traffic in drugs, a special direction will be unnecessary as the nature of the charge already shows a certain degree of continuity[37].

41.Accordingly, if the case involves only an isolated drug trafficking transaction, the prosecution case does not show that the cash was obtained by the defendant in that transaction, and the defence does not rely on the cash seized as part of its case, then the prosecution and the defence should inform the court of the precise purpose for which the evidence is adduced, in order that the matter could be properly dealt with.

42.In the present case, as mentioned before, the cash on the appellant’s person was not only adduced by way of admitted facts, it was also on the defence’s initiative, on examination-in-chief to mention the source of the money in order to prove that the appellant was engaged in proper business activities. Given that the appellant did not suggest that the money had a historic origin, but it rather was the refund received on the day before the arrest, all that was required to be resolved by the jury was the likely credibility, of the appellant’s account for the cash.

43.Moreover, this case involved not only drug trafficking but also drug manufacturing. The prosecution case was that the appellant packaged and dealt with the processed drugs for trafficking. The case was therefore not a single, isolated drug trafficking incident, but rather one of continuity. We have also pointed out that neither in the prosecution’s closing submissions nor in the judge’s summing-up was the cash being focused on as supporting the prosecution case. The jury was, instead, just invited to consider the evidence as a whole.

44.In light of the foregoing, we are of the view that Direction 36.1 of the Specimen Directions, if given in this case, would not be of assistance to the jury in grasping the real issues, but might perhaps render the summing-up unnecessarily complex and difficult to understand. In any event, the judge’s present approach did not result in any miscarriage of justice or any irregularity.

Conclusion

45.This Court dismissed the appeal against conviction and the conviction was upheld.