HKSAR v. Tang Sik Man

CACC 188/2022

[2024] HKCA 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 188 OF 2022

(ON APPEAL FROM HCCC NO 24 OF 2020)

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J U D G M E N T

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1.The applicant pleaded not guilty to one count of trafficking in a dangerous drug, namely, 4,488 grammes of a solid containing 3,493 grammes of cocaine, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Following a trial before Anna Lai J (“the judge”) and a jury of nine, the applicant was, on 7 October 2022, convicted by a majority verdict of 8:1 and sentenced to 27 years and 5 months’ imprisonment.

2.The applicant now applies for leave to appeal against his conviction only. On 17 May 2024, having heard from counsel, I reserved judgment on this matter. This is my decision.

The prosecution case

3.On 3 February 2019, the applicant departed from Hong Kong International Airport for São Paulo in Brazil, via Doha in Qatar. Later, on 8 February 2019, the applicant left São Paulo and returned to Hong Kong via Doha, arriving on 9 February 2019. Upon his arrival, at about 3:40 pm, the applicant was selected for Customs clearance in the ‘Nothing to Declare’ channel of Customs Arrival Hall B at Hong Kong International Airport. At that time, the applicant was in possession of a black suitcase wrapped in a red plastic cover and a black backpack. Subsequent X-ray examination revealed suspicious images inside the suitcase, while the application of an itemizer gave a positive reading for cocaine.

4.Upon further examination by a Customs officer, a secret compartment was discovered inside the suitcase containing 3 packets of dangerous drugs, subsequently certified to be the cocaine particularised in the indictment. The street value of the cocaine at the time was agreed to be HK$4,254,624.00[1].

5.Upon enquiry by Customs officers, the applicant claimed that the suitcase was given to him by a person called “Yasmin” in Brazil; and that he had no knowledge of the drugs contained or concealed inside[2].

6.The suitcase together with all of its contents weighed 22.3 kilogrammes, whilst in its emptied state but including the 3 concealed packets of cocaine, it weighed 11 kilogrammes[3].

7.At trial, the ultimate issue came down to whether the applicant had any knowledge of the presence of dangerous drugs in the suitcase he was carrying[4]. It was the prosecution case that an irresistible inference could be drawn from the circumstantial evidence that the applicant knew he was in possession of, and trafficking in, dangerous drugs when he entered Hong Kong[5].

8.The applicant elected to testify and called his former girlfriend, Ms Lee Yee-ching (“Ms Lee”), as a defence witness. The applicant said he left Hong Kong for Brazil, intending to give his girlfriend, whom I shall refer to as “Dorothy”, although her full Chinese name was given in evidence, a surprise visit, since he believed she was staying with her host family in São Paulo. When he learnt, upon his arrival, that Dorothy was not at the time in Brazil, he nevertheless decided to stay on for the remainder of his trip[6].

9.During his stay, on 4 February 2019, the applicant came to know a girl in São Paulo named “Yasmin” through the Tinder Application (“Tinder App”)[7]. Yasmin contacted him via WhatsApp on 5 February 2019 and she and the applicant met for the first time in the morning of 6 February 2019. They duly agreed to meet up again later that day when Yasmin finished at school and the two had consensual sex in the applicant’s hotel room[8]. While he was taking a shower, Yasmin told the applicant that she had broken the zipper of his suitcase; and, later during dinner that evening, she suggested that she would lend him another suitcase[9].

10.On 7 February 2019, Yasmin brought another suitcase to the hotel and, at the same time, introduced her elder brother “Alex” to the applicant[10]. Afterwards, Yasmin went to the applicant’s room, where they had consensual sex again. While the applicant was having a shower, Yasmin offered to pack all his clothes and belongings into the suitcase for him, which he accepted. Having done so, she closed the suitcase and put it aside[11]. Later that same evening, Alex went to the hotel to escort the applicant to the airport[12]. The applicant claimed that he had never handled the suitcase at all until he took it from the luggage belt upon his return into Hong Kong[13]. He insisted that he had no knowledge of the concealment of any dangerous drugs inside the suitcase[14].

11.At trial, by way of the 3^rd set of admitted facts[15], Exhibit D1 was adduced, comprising: (i) WhatsApp messages between the applicant and Ms Lee from 3 to 5 February 2019 (retrieved from Ms Lee’s mobile telephone); (ii) WhatsApp messages between the applicant and Yasmin from 5 to 8 February 2019 (retrieved from the applicant’s mobile telephone); and (iii) photographs taken by the applicant (retrieved from the applicant’s mobile telephone). Further, during the applicant’s testimony, the WhatsApp messages between the applicant and another girlfriend in Hong Kong, called “Mandy”, were adduced as Exhibits D2 and D2A[16].

12.It was the defence case that based on the applicant’s evidence and all other circumstantial evidence including the WhatsApp records, one reasonable inference to be drawn was that the applicant was tricked and used by a drug syndicate in Brazil, involving Yasmin, Alex and others, into bringing a suitcase containing cocaine to Hong Kong[17].

Grounds of appeal against conviction

13.Two grounds of appeal against conviction have been advanced by Mr Donald and Ms Mohamed, on the applicant’s behalf:

(1)  There was a material irregularity at trial when the judge erred in failing adequately to direct the jury on how they should use the WhatsApp communications. The jury were not informed as to the purpose or the reason why the WhatsApp (communications) were being admitted; i.e. whether it was for the truth of its contents or to prove the applicant’s state of mind.

(2)  Further, if there was evidence in the content of the WhatsApp communications favourable to the applicant, then the jury should be told they could use this to support the applicant’s evidence, but even if there was no supporting evidence in the WhatsApp communications, they could still accept the applicant’s oral evidence if it was true or may be true. A failure to give such directions would lead the jury to simply disbelieve the applicant if they did not see any supporting evidence in the WhatsApp communications, when considering his oral evidence.

Ground 1 (failure to adequately direct the jury on how they should use the WhatsApp communications)

14.Several complaints are made under this ground:

(1)  Since the WhatsApp messages were not produced under section 22A of the Evidence Ordinance, Cap 8 (“Section 22A”), the judge should have expressly directed the jury that the messages were not adduced to prove the truth of their contents but to support the applicant’s case as to the existence of Yasmin and his state of mind: see HKSAR v Milne John[18]; HKSAR v Lau Shing Chung Simon[19].

(2)  As the telephone contents were not adduced under Section 22A, the jury should have been specifically directed that, since she did not give evidence, they could not treat the texts from Yasmin as the truth, but they could rely on them to draw an inference that the applicant’s relationship with her was a purely sexual one.

(3)  The judge’s direction was not sufficient, and she should have further told the jury that the WhatsApp messages did not say anything about drugs, and that the applicant may only have been trying to make Mandy, his girlfriend in Hong Kong, jealous.

(4)  The judge should have told the jury to draw an inference favourable to the applicant when considering the WhatsApp evidence.

15.Mr Tang, on behalf of the respondent, submitted in reply that the issue advanced by the applicant comes down to whether the jury were sufficiently directed as to how they could use the contents of the telephone, in particular the WhatsApp records. Mr Tang submitted that the judge’s directions on the relevance of the telephone contents were clear and adequate.

16.He pointed out that the judge specifically referred the jury to the 3^rd set of admitted facts[20] concerning the production of the WhatsApp messages in Exhibit D1 and directed them that “[t]here is no dispute that those were actually the WhatsApp messages between the defendant and the relevant persons”[21].

17.Moreover, it was clear from the judge’s meticulous and detailed summing-up of the evidence that the jury would have clearly known the purpose of all the telephone contents, which was to support the applicant’s evidence and the defence case as to the existence of Yasmin, the true nature of the relationship between her and the applicant, the applicant’s state of mind and, most importantly, the possibility that the applicant was simply being used by the drug syndicate to carry a suitcase containing cocaine unwittingly back to Hong Kong.

Ground 2 (failure to direct the jury that even if there was no supporting evidence in the WhatsApp communications, they could still accept the applicant's oral evidence if it was or might be true)

18.The complaint under Ground 2 is that, given the way the prosecution had presented its case, the judge should have gone further than simply giving the usual burden and standard of proof and lies directions. The jury should also have been told that even if there were no WhatsApp messages to support what the applicant said, they could still rely on his oral evidence, since it was direct evidence, and the defendant did not have the burden of proving his innocence.

19.In response, Mr Tang submits that, in her summing-up, the judge repeatedly told the jury that they should consider the whole of the evidence including the evidence given by the witnesses at trial and the admitted facts to form their own judgment about whose evidence was or was not reliable[22]. Moreover, the judge specifically told the jury that they must take what the applicant and Ms Lee said into account when considering the issues of fact they had to determine[23]. In the circumstances, the jury must have known that they had to consider all the evidence before them, when resolving the key issue in the case.

20.In relation to the alleged reversal of the burden of proof, it was submitted that the challenges to the applicant’s testimony by prosecuting counsel were intended to cast doubt on the reasonableness of the applicant’s story and had no implication on the burden of proof. Furthermore, the judge repeatedly told the jury, in unambiguous terms, about the burden of proof[24] and the standard of proof[25], and how they must acquit the applicant if his version that he did not know the suitcase contained dangerous drugs was, or might be, true[26]. Mr Tang submitted that the judge’s directions were impeccable and the jury could not have confused the burden of proof.

Consideration

21.The two grounds of appeal can be dealt with together and, indeed, they overlap. There was no issue in this case about either the relevance or the authenticity, or the admissibility, of Exhibits D1 and D2 (and D2A). The material was adduced by the defence and was before the jury by way of admitted fact evidence, which, as the judge directed, “…you must regard as having been conclusively proved. No evidence is required to prove those matters already stated in the admitted facts. You cannot doubt and you cannot challenge an admitted fact”[27].

22.Furthermore, the judge said specifically in relation to the admitted facts, by which Exhibits D1 and D2 (and 2A) were produced[28]:

“Now, in respect of the last, the 3^rd set of Admitted Facts, it relates mainly to the production of the WhatsApp messages between the defendant and other people which, in fact, counsel had gone through them with you in detail. I do not propose to go through them with you now. Anyway, it is for the production of the WhatsApp messages. There is no dispute those were actually the WhatsApp messages between the defendant and the relevant persons.”

23.The references to the authorities of Milne John and Lau Shing Chung Simon are not, with respect, relevant. Those cases concerned wholly different circumstances, where relevant and admissible WhatsApp messages had been wrongly ruled to be inadmissible by the judge and magistrate respectively. The two authorities have no bearing on this case, where there was no issue about the fact of the messages or the photographs and their relevance or authenticity. The whole point of this evidence was carefully explained by defence counsel in his closing speech to the jury, which was delivered on the same day as the judge began her summing-up, as follows:

(1)  The applicant took a photograph of himself together with Yasmin, namely Exhibit D1 at p167, with his own telephone, and sent it to her, thus supporting the defence contention that she would thereafter have a photograph of what he looked like for the purpose of identifying him to the syndicate and of picking up the suitcase of dangerous drugs in Hong Kong[29];

(2)  The photographs in Exhibit D2 supported the applicant’s account that, like any other tourist in Brazil, he too took photographs of various local sights and scenes[30];

(3)  The WhatsApp message sent by the applicant to Yasmin one hour after departing from Doha, namely, “I’m on my plane to HK”, meant that Yasmin (and the syndicate) could trace the applicant’s whereabouts and estimate the arrival time of his flight into Hong Kong[31];

(4)  The WhatsApp messages were consistent with the applicant’s evidence. Defence counsel addressed the jury: “…I have to emphasise to you … that the WhatsApp messages with Yasmin tell you the whole truth. It’s in line, consistent with what the defendant said, right. Defendant could explain each and every one when he was with Yasmin. It’s very normal, just like our daily life”[32].

24.Thus, it would have been entirely clear why the defence wanted Exhibits D1 and D2 (and D2A) to be placed before the jury and what their significance was to the defence case.

25.Having read the summing-up as a whole, I do not consider the complaint that the judge did not properly explain the significance of Exhibits D1 and D2 (and D2A) to the jury to be reasonably arguable. Some of the points made by defence counsel (recited at [23] supra) were again recited by the judge in her summing-up. For example, point (1) was repeated by the judge[33]:

“And, I think, counsel had asked you to look at those two photographs in the defence bundle this morning so I will not go through that with you. That is the picture of the two of them taken together while they were going out together in Brazil. And so the defendant had actually sent his own photograph with Yasmin back to Yasmin. So Yasmin can always, the defence said, Yasmin can always send the photograph or distribute his look, for other people – for them to identify him and to – so that they know that he was the one with the suitcase containing dangerous drugs.”

26.The judge made point (3) in these terms[34]:

“That is the WhatsApp that after the defendant had boarded the plane back to Hong Kong, he sent a WhatsApp message to Yasmin that, ‘I am on the plane to Hong Kong.’ If you would like to look you can take a look at page 86 at that part of the defence bundle. ‘I’m on my plane to Hong Kong.’ So counsel said coupled or taking into account all these pieces of circumstantial evidence you can arrive at the reasonable conclusion that, in fact, Alex or somebody in the syndicate would have some agent to follow the defendant back to Hong Kong because they can identify him. And that in a sense, that after arrival in Hong Kong, maybe at a certain stage that somebody would try to get back or to collect the suitcase from the accused or from the defendant.

Of course, the defendant has never given evidence about that because if that is the case he would have no idea. Nobody will have told him beforehand. So that is the reason that the defence also asked you to consider, according to the circumstantial evidence, that Alex accompanied him to the airport and that Alex talked on the phone in another language, that Yasmin had his look, his photograph, that he had told Yasmin that, ‘I am on my plane to Hong Kong,’ so they know about his itinerary or the approximate time that he arrived at Hong Kong. So counsel invites you to draw the inference that, well, a reasonable inference, that maybe somebody from the syndicate was following him back to Hong Kong, or that somebody even collected or would take back the suitcase from him after he arrived in Hong Kong.”

27.In relation to points (2) and (4), the judge dealt with them in this way[35]:

“On the other hand, the defence asks you to consider his story that he has WhatsApp, etc, and the photographs to support the fact that he really come to meet this girl called Yasmin in Brazil, they did go out together and apparently they are pretty close to each other during his stay in Brazil. And it is the defence version that for some reason this syndicate needed somebody to get a consignment of cocaine to Hong Kong and conveniently he was in Brazil and that he was lured by this girl to, first of all, the girl damaged his suitcase and then the girl offered him another suitcase for him to use with the drugs concealed inside without his knowledge, and that is why they can get him to get this suitcase of drugs back to Hong Kong.

And as to the disposal matter, even though there was no actual discussion as to how this suitcase containing 4.5 million of drugs would be disposed, the defendant actually believed that this girl would come to Hong Kong to collect the suitcase in the near future, or that she may ask him to have it given back to her cousin on Hong Kong. And the defence suggests that on the evidence because the girl, and also Alex, at least these persons in the syndicate, they knew about his date of arrival, time of arrival back in Hong Kong. They knew his appearance because they got his photographs taken together with the girl. So maybe he was being followed back by somebody, by some agent, or maybe they would try some way to get back the suitcase from him upon after his arrival in Hong Kong.”

28.I do not think it is fair to say, therefore, that the judge did not make the very points on behalf of the defence that the applicant’s own counsel had made to the jury shortly before the summing-up; even assuming she was required to do so, which Mr Tang correctly says she was not. Moreover, some of these points were so obvious that they hardly needed to be repeated, such as the applicant taking photographs of scenes in São Paulo, which any ordinary tourist might be expected to do.

29.Mr Donald’s complaint must, therefore, be that the judge did not explicitly state that the material in Exhibits D1 and D2 (and D2A) in fact supported the applicant’s case. To that extent, he conceded that the appeal was more concerned with what the judge did not say rather than what she did say. However, the real issue for the jury, subject to the correct application of the burden and standard of proof, would have been abundantly clear to them: was the applicant proved to have been a drug trafficker, who knew exactly what he was doing in carrying dangerous drugs from Brazil into Hong Kong; or was he, or might he have been, a guileless young tourist in a foreign country, who, having used the Tinder App to “hook up” with a young girl, was then unwittingly taken advantage of in order to deliver a suitcase of cocaine back to Hong Kong? The fact that he took photographs of São Paulo Cathedral, or used a 5-day trip to have a sexual liaison with a girl via the Tinder App and communicated with her on WhatsApp did not mean he was not also on a mission to traffic in dangerous drugs. What was ultimately in issue was the applicant’s state of mind at the time he carried the suitcase of dangerous drugs. That was the clear emphatic theme of the judge’s summing-up. She began her summing-up by explaining that the “narrow” issue was knowledge[36]; and it was the last thing she said to the jury before giving directions about the formal mechanics of returning their verdict[37]. Exhibits D1 and D2 (and D2A) plainly went to that issue: the jury could not have thought otherwise.

30.The circumstantial evidence, which, as the judge clearly told the jury, included Exhibits D1 and D2 (and D2A), was for them to determine in the context of the ultimate issue of knowledge[38]:

“You do not have to decide every point which has been raised, only such matters as will enable you to say whether the charge laid against the defendant has been proven. You will do that by having regard to the whole of the evidence including the Admitted Facts and also evidences given by the witnesses at this trial to form your own judgment about the witnesses and which evidence is reliable and which is not.”

31.The further argument that because something was not mentioned in the WhatsApp messages to tie in with the applicant’s oral evidence, the jury needed to be expressly told that it did not mean they could not accept his evidence, is not one on which one will find authority to support such a proposition. It is surely a matter for the jury, using their common sense, whether they regard what is said, or not said, by a defendant in contemporaneous WhatsApp messages as supporting, or not supporting, his later oral assertions, providing they understand that the defendant has to prove nothing and the burden and standard of proof remains resolutely on the prosecution. I do not consider that it is reasonably arguable as a matter of law, or on the facts of this particular case, that the judge was required to give the directions suggested.

32.The applicant’s grounds of appeal are not reasonably arguable and I decline to give leave to appeal against conviction.

33.The applicant is reminded that he has the right to renew his application for leave to appeal to the full Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.

Mr Kelvin Tang SPP, of the Department of Justice, for the Respondent

Mr Richard D Donald and Ms Nisha Mohamed (complimentary brief), instructed by Hastings & Co, assigned by the Director of Legal Aid, for the Applicant