HKSAR v. Chan Ki Fung and Another

HCCC 196/2021

[2024] HKCFI 671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2021

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BETWEEN

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R U L I N G

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1.The defendants are charged with trafficking in dangerous drugs. A parcel containing heroin was mailed to Hong Kong from Malaysia. The first defendant (“D1”) is alleged to have persuaded the second defendant (“D2”) to allow her address to be used as the place for the parcel’s delivery, and when it had not been delivered but had to be collected from the post office, D1 is alleged to have arranged for D2 to collect it from the post office, and to hand it over to D1 when she had done that, although in the event the parcel was collected by D1. The prosecution’s case is that the two defendants participated in a joint venture to bring this heroin into Hong Kong. The defendants’ defence will be that they did not know that the parcel contained dangerous drugs. If they elect to give evidence, they will say that they thought that the parcel contained ivory which was being illegally imported into Hong Kong, and it may be that D2 will also say that she did not know that the parcel came from overseas.

2.The prosecution has concluded its case, and counsel for both defendants now submit that the defendants have no case to answer. There is, they say, no evidence, whether direct or circumstantial, on which a properly directed jury could be sure that they had known that the parcel contained dangerous drugs. The argument is that, taken at its highest, the evidence could only demonstrate an agreement between the defendants to collect a parcel which they knew contained something illegal, but not one which they knew contained dangerous drugs.

3.I deal with D2 first. The defendants were originally tried before another judge. At the beginning of the trial, the judge invited D2’s counsel to consider making an application under section 16 of the Criminal Procedure Ordinance (Cap 221) for D2 to be discharged on the basis that the evidence disclosed in the relevant documents was insufficient to establish a prima facie case against her. Counsel duly made that application, and the judge granted it. The prosecution appealed against the judge’s ruling. In the event, the Court of Appeal allowed the appeal and ordered D2 to be tried. The Court of Appeal took the view that the evidence disclosed in the relevant documents was sufficient to establish a prima facie case against D2 – and I quote from para 59 of its judgment:

“…on the basis that a properly directed jury ‘could, may or might’ find she was knowingly a party in a joint enterprise with D1 to traffic in a dangerous drug in the parcel.”

The Court of Appeal added:

“We do not need to repeat the evidence that has already been described in this judgment, but suffice it to note that D2 agreed with D1 to provide her name and address to receive a parcel from abroad for reward; she provided the notification card to collect the parcel to D1; she agreed with D1 to attend the Post Office to collect the parcel; she assisted D1 to collect the parcel when she was instructed that D1 would collect it; she received instructions from a third party, who she identified as D1’s senior, regarding the collection of the parcel; she remained in the vicinity of the Post Office and met up with D1 after he had … collected the parcel to receive her reward; and she acknowledged in her text messages that she was engaged in something ‘illegal’ and was concerned that D1 might have been arrested”

4.In one respect, the Court of Appeal may have misunderstood the evidence. Apart from what D2 had told customs officers when she was interviewed, there was no evidence that D2 had “met up with D1 after he had… collected the parcel to receive her reward”. The unchallenged evidence was that D1 had been arrested as soon as he left the post office. What the Court of Appeal was going on was what D2 had told customs officers when she was interviewed following her arrest. What was undoubtedly the case was that she had tried to get in touch with D1 after he had collected the parcel to receive her reward, but that he had not answered her calls.

5.Two additional points need to be made. First, as the Court of Appeal acknowledged in para 14 of its judgment, the test to be applied on an application under section 16 is the same as when a judge determines whether there is a case to answer at the close of the prosecution’s case, save that the decision under section 16 is based entirely on the relevant documents and without any oral evidence being heard. Secondly, the Court of Appeal acknowledged in para 58 of its judgment that the contention that there was no evidence that D2 had known that the parcel contained dangerous drugs was one which could form the basis of an application of no case to answer. But it added that the success of such an application would “depend on how the prosecution evidence is presented and received, and subject to any other evidence that is adduced at the trial.”

6.The fact of the matter is that the evidence relied on by the prosecution has not been disputed at all. All the facts which the prosecution would otherwise have had to prove have been covered by the Admitted Facts. The only witnesses who the prosecution called were tendered for cross-examination by the defence, and that cross-examination in no way undermined the facts on which the prosecution rely to prove that D2 knew that the parcel contained dangerous drugs. The only thing which the cross-examination established was that there might have been other steps which customs officers could have taken which might have shed light on the state of the defendants’ knowledge of what the parcel contained. That does not weaken the prosecution’s case. It is at most something which could support the defendants’ case if they elect to give evidence.

7.Since the Court of Appeal concluded that the state of the evidence as it appeared from the papers when the application under section 16 was made was sufficient to establish a prima facie case against D2, it would inevitably conclude that the state of the evidence as it stands at the moment is likewise sufficient to establish a prima facie case against her. If I were to allow this submission on behalf of D2, I would be substituting my view for that of the Court of Appeal on material which was no different from that on which the Court of Appeal based its decision. I am not permitted to do that. It follows that D2 has a case to answer.

8.The case against D1 is much stronger than the case against D2. That is because he actually collected the parcel and because there are WhatsApp messages between D1 and two other men which show how heavily D1 was involved in making arrangements for the delivery of the parcel to D2’s address and for its subsequent collection from the post office. They show that what he said when arrested about having been asked by a woman he knew to collect the parcel had not been true. Indeed, the WhatsApp messages show that he was so involved in the delivery and collection of the parcel as to make it open to the jury to infer that D1 knew that this was something more than the illegal importation of ivory, and that he must have known that it involved the importation of dangerous drugs. I therefore rule that D1 too has a case to answer.

Ms Lisa Remedios, counsel-on-fiat, for HKSAR

Mr. Felix Tam and Mr. Leon Chan, instructed by M/s M.C.A. Lai Solicitors LLP, for the 1^st defendant

Mr. Mughal Hanif M. and Ms. Teresa Yu (on pro bono basis) instructed by M/s King & Co., assigned by Director of Legal Aid, for the 2^nd defendant