HKSAR v. Ko Shui Ching

CACC 69 /2022

[2024] HKCA 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2022

(ON APPEAL FROM DCCC NO 643 OF 2021)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Macrae Acting CJHC (giving the Reasons for Judgment of the Court):

1.The appellant (who was D2 at trial)  was jointly charged with D1 in the District Court on two charges of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. On 16 February 2022, D1 admitted both charges and was duly convicted on his own pleas. On 3 March 2022, following a trial, the appellant was convicted of both charges by HH Judge D Yau and, on 29 April 2022, sentenced to a total of 6 years and 3 months’ imprisonment.

2.He appealed against his convictions.  On 21 June 2023, the Single Judge granted the appellant leave to appeal against conviction[1], for which legal aid was granted.  On 10 May 2024, having heard counsel, we dismissed the appeal and said we would hand down the reasons for our decision in due course.  These are our reasons.

The prosecution case

3.Charge 1 alleged that, on 17 December 2020, the appellant and D1 unlawfully trafficked in 4.65 grammes of a solid containing 3.89 grammes of cocaine in a residential unit in Tuen Tsz Wai in Tuen Mun, New Territories (“the Unit”).

4.Charge 2 alleged that, on 18 December 2020, the appellant and D1 unlawfully trafficked in 19.69 grammes of a solid containing 17.99 grammes of cocaine and 5.02 grammes of a solid containing 3 grammes of ketamine in an unnumbered stone hut located near the Unit in Tuen Tsz Wai in Tuen Mun (“the Hut”).

5.In the evening of 17 December 2020, police officers laid ambush in the vicinity of the Unit.  At about 9:15 pm, PW1 took up observation on Ng Lau Road from where he could not see the door to the Unit but had a clear view of the way leading to and from the Unit.  He observed a male coming down a pathway from the Unit, crossing the road, going over to a stone hut and then disappearing from view.  About an hour and a half later, another male walked down the road away from the Unit and turned left.  PW1 found this man suspicious, so he instructed his fellow officers through his console to intercept the man.

6.On receiving this instruction, PW2 intercepted and searched the male (later known as “Ng”)  but nothing suspicious was found.  Ng told PW2 that he lived in the Unit.  Accordingly, PW1, PW2 and other police officers then took Ng to the Unit, arriving at about 10:36 pm.  PW2 knocked on the door, which was answered by D1.  The appellant was at the time sitting on a sofa inside the Unit.

7.PW5 searched the appellant and found five keys, one of which was the key to the main door of the Unit; $9,180 in cash; an iPhone; and a car key.  At that stage, the appellant told PW5 that the bedroom near the doorway of the Unit was his room (“Room A”).

8.PW3, the exhibits officer, proceeded to search the three bedrooms, the living room, the kitchen and the bathroom of the Unit.  The appellant was taken to witness the search of Room A, where, on the window sill, PW3 found the appellant’s Mainland driving licence, next to which were 3 keys.  These items were not seized at the time.

9.The search of two other bedrooms and the bathroom of the Unit revealed no items of interest.

10.Just after midnight on 17/18 December 2020, with the appellant in attendance, PW3 searched the kitchen of the Unit.  In the kitchen where a stove would have been placed, were discovered 6 small packets of cocaine and an empty cigarette packet.  Next to the sink were found a further 10 small packets of cocaine and 7 cigarette packets[2].  As a consequence, the appellant, D1 and Ng were arrested and cautioned for trafficking in dangerous drugs.  The appellant said nothing in response.  These facts formed the basis of Charge 1.

11.The appellant’s car was then searched but nothing suspicious was found.  Upon returning to the Unit, the rooms were searched again and, from the window sill inside Room A was seized the appellant’s Mainland driving licence and the three keys, one of which was found to unlock the main door of the Hut.  Since a man resembling D1 was earlier seen to have walked to the Hut nearby, it was then searched while the appellant witnessed the search. 

12.From an iron rack inside the Hut, PW3 found a beef knife and, next to it, a shoebox holding 39 transparent re-sealable plastic bags containing the cocaine and ketamine in the quantities particularised in Charge 2, 433 unused transparent re-sealable plastic bags, one plastic container inside of which was a small amount of cocaine, a spoon, a cut up playing card with traces of white powder, and one electronic scale[3].

13.The appellant was arrested for possession of an offensive weapon and trafficking in dangerous drugs but said nothing under caution.  It was an admitted fact that the appellant’s left thumbprint was found on the edge of a 5-tiered iron rack inside the Hut[4], on which the shoebox was found.

The defence case

14.The appellant elected to give evidence.  His case was that he had no knowledge of the presence of the dangerous drugs in the Unit or the Hut.  D1, who had earlier pleaded guilty, was not called as a witness, either for the prosecution or the defence.

15.The appellant admitted that he had entered into a tenancy agreement for his occupation of the Unit at a monthly rent of $12,000.  When signing the tenancy agreement on 17 November 2020, he had told the estate agent that he would be sharing the Unit with two younger men, who were D1 and Ng.  It had been agreed that they would split the rent, the appellant and Ng each being responsible for $5,000 and D1, for $2,000.  The $9,180 cash found on the appellant at the material time was said to be the rental payment for the month of January 2021.

16.The appellant testified that at about 9 pm on 17 December 2021, he had left the Unit and driven to Tuen Mun Police Station to deliver a meal box to a friend, who had been arrested in respect of another matter.  He then drove to Hung Shui Kiu to find out the cause of his friend’s arrest.  After that, he purchased a meal box for himself and drove back to the Unit.

17.In the Unit, he sat down in the living room to eat. A photograph taken by the police showed what was left of his meal, with a pair of used chopsticks inside the meal box.  After a while, the police party knocked on the door.  The appellant said he cooperated with the police throughout.  He confirmed that Room A was his room but could not remember if he told the police about this or not.  He maintained that after his return from Hung Shui Kiu, he never entered the kitchen.  He had never seen the packets of drugs and did not know who had placed them there.  Nor did he know if D1 or Ng were dealing with drugs in the Unit.

18.The appellant said that his Mainland driver’s licence was found inside a black Manila envelope on the floor inside Room A, shown in one of photographs produced at trial[5]. As to the bunch of 3 keys, one of which opened the door to the Hut, they were alleged to be found in the living room, not on the window sill of Room A.  The appellant did not say how he knew the keys were found in the living room, nor where the keys were inside the living room.  He denied renting or having a key to the Hut.

19.The appellant further testified that a week before his arrest, D1 had asked him to go to the Hut to help him move some racks and miscellaneous items.  D1 did not tell him how he was connected with the Hut, why he should possess a key to the Hut, who the Hut belonged to, or who was living there.  On this one occasion when he went to the Hut, he only stayed for about 15 to 20 minutes, during which time he moved the rack from the outside to the inside of the Hut, which would explain how his thumbprint was found on it.  The appellant claimed he did not know there were dangerous drugs in the Hut.

Reasons for verdict

20.The judge found all of the prosecution witnesses honest and reliable and accepted their evidence.  He did not accept the appellant’s evidence.

21.The judge observed that the appellant, in his evidence, did not say that his driving licence and the key to the Hut were in fact found in the living room.  The matter had arisen during counsel’s cross-examination of PW3 based on the latter’s witness statement, in which he stated that the items were found “from the window sill near the main door”; suggesting that the window sill in question was the one in the living room, not in Room A.  PW3 disagreed with the suggestion and confirmed that the relevant items were found in Room A[6]. The judge accepted PW3’s explanation.

22.The judge did not find the appellant a credible witness and rejected his evidence.  He queried the appellant’s account that the $9,000-odd cash in his possession was for the payment of rent, which would only have been due in 14 days and there was no reason for the appellant to have so much cash in his pocket whilst sitting at home.  Moreover, the appellant agreed in cross-examination that the cash still fell short of the full rental amount owed.  The judge also disbelieved the appellant’s account as to how his thumbprint came to be left on the metal rack inside the Hut, since the episode was devoid of details.  

23.As to when the appellant had returned to the Unit, the judge found that PW1 had been fully focused in his observation of the Unit from his location from 9:15 pm onwards, so it was not possible that he would have missed the appellant returning to the Unit.  The judge did not accept the appellant’s evidence that he had only arrived back in the Unit some 30 minutes before the arrival of the police.  The judge was careful to say that while he found the appellant’s evidence untruthful, he confined this finding to a consideration of the appellant’s credibility.  It still remained to be decided whether he could draw the only reasonable inference that the appellant was in joint possession of the dangerous drugs in the kitchen of the Unit, as well as in the Hut, from the facts proved by the prosecution[7].

24.In relation to Charge 1, the judge held:

“153. I find that, based on all the circumstantial evidence, including the fact that D2 was the person who rented the unit from the landlord, that D2 had the key to the unit on his person, that the dangerous drugs found in the kitchen were casually and openly placed on the stove top and sink area of the kitchen, in full view of everyone who resided in the unit, that D2 resided in the room right next to the kitchen, and that D2 was sitting in the living room of the unit while the dangerous drugs in the kitchen were there, the only reasonable inference must be that the defendant was in possession of the dangerous drugs inside the kitchen in the sense that they were within his control, and that D2 knew they were there and had the intention to exercise custody and control over them.

154. I find also that, based on the fact that the dangerous drugs were contained in 16 small transparent re-sealable plastic bags, and the manner they were laid out on the stove top and the sink, the only reasonable inference must be that D2 was in possession of them for the purpose of trafficking in them.

155.  As such, I find D2 guilty of charge 1.”

25.In relation to Charge 2, the judge said:

“146. D2 is, of course, not being tried for the possession of the knife, but the fact that there was such an ominous looking knife next to the shoe box must have caught the attention of anyone who was moving the rack.

147. There is, however, no evidence that the knife, or even the shoe box, was on the rack on the day when D2 said he helped D1 to move it, but if they were, I find that it would have been impossible for D2 to miss them.

148. There is, furthermore, no duty on D2 to make enquiries even if he did see them and the prosecution is not relying on constructive knowledge on D2’s part to prove guilt. These are just matters to be taken into account together with all other circumstances.

…

156. In relation to Charge 2, I find that based on the circumstantial evidence, including the fact that D2 had the key of the unit on his person, the key to the stone hut was found on the window sill of D2’s room next to the mainland driver’s license in D2’s name, the fact that there were dangerous drugs on open display in the kitchen of the unit and being in the custody and control of D2, the placement of the shoebox right next to the entrance, and the fact that D2’s thumb print was found on the rack where the shoe box with all the dangerous drugs and paraphernalia were found, the only reasonable inference must be that the defendant was in possession of the shoe box and its contents in the sense that they were within his control, and D2 knew they were there and had the intention to exercise custody or control over them.

157. Furthermore, even if we were to accept what D2 said was true about leaving his print on the rack after D1 asked him to move it, I find that the remaining circumstantial evidence would still compel me to draw the only reasonable inference that D2 was in possession of the dangerous drugs in the hut.

158. I also find that, based on the fact that the cocaine and ketamine were contained inside 39 transparent re-sealable plastic bags, that there were 433 unused transparent re-sealable plastic bags inside the shoe box, that a plastic container containing small amount of cocaine, a spoon and a cut up playing card containing traces of white powder, and one electronic scale were also found together with the drugs, the only reasonable inference must be that D2 was in possession of the dangerous drugs for the purpose of trafficking.

159.  As such, I find D2 guilty of Charge 2.”

Grounds of appeal

26.Mr Donald, with him Ms Mohamed, advanced one ground of appeal on behalf of the appellant, namely, the judge erred in law in respect of both counts by failing to address and consider the principles set out in HKSAR v Li Jin [2010] 4 HKLRD 614 and HKSAR v Ko Wai Shing [2021] 5 HKLRD 724.

27.Mr Donald submitted that the issue in the present appeal was whether the Li Jin direction should be extended to cases where, although there was no spousal relationship between the defendant and another person whom the defence alleged to have possession of dangerous drugs, the two were nevertheless in a domestic situation similar to that of a spousal relationship.  

28.In the present case, prosecuting counsel argued in his closing submissions that the appellant was “not a young boy of 17”; that “he surely would have taken steps to curtail the drug-trafficking activity”[8]; and that “he knew what was going on and took no steps to stop it”[9]. Mr Donald submitted that this submission by counsel may have led to the impermissible line of reasoning, which the Li Jin direction sought to avoid.

The respondent’s submissions

29.Ms Fung, representing the respondent, submitted that the so-called Li Jin ‘direction’ did not apply to the facts and circumstances of the present case.  She argued that friends or acquaintances sharing a flat are in a very different category from cohabiting couples in a romantic relationship.  In any event, the appellant denied knowledge of the presence of any dangerous drugs in the Unit: it was never his case that he knew there were dangerous drugs in the kitchen, but had had nothing to do with them.  Moreover, the judge did not find the appellant a credible witness and it was not even clear whether the judge accepted the appellant’s claim that the Unit was being lived in by D1, Ng and himself as flatmates.  Although there was evidence that the two other bedrooms in the Unit were searched in the presence of D1 and Ng respectively, the reasons for this were not explained[10].

30.Even if there had been a finding that the appellant was sharing the Unit with D1 and Ng, their relationship was that of flatmates, not spouses or lovers: indeed, the appellant’s evidence was that he and D1 had only recently become acquainted.  Ms Fung argued that, if either D1 or Ng was in possession of the dangerous drugs, it would have been more reasonable for them to be kept in one of the rooms than in the common stove area, near the sink in the communal kitchen.  Their location suggested that the drugs were possessed or shared by more than one person.

31.Ultimately, Ms Fung submitted that the judge did not convict the appellant on the basis of prosecuting counsel’s suggestion in his closing submissions, which, she conceded, on the face of it, was not a correct statement of the law.

Discussion

32.If we may deal with the last point first, it is clear that the judge was aware of the case of Li Jin because prosecuting counsel specifically referred to it, and produced a copy of the decision to the judge, during his closing address[11]. He also pointed out that the same defence counsel in the present trial had been counsel for the appellant in that appeal.  Plainly, therefore, the judge must have been aware of the ratio decidendi of the case.

33.Quite apart from the fact that the domestic situation in the present case did not disclose the sort of close personal relationship or familial context envisaged in Chan Chor-yam, Li Jin or Ko Wai Shing, we do not think that line of cases has any relevance to the circumstances present in this case.  This was a simple case of joint possession involving the 32-year-old tenant and occupier of premises, in which drugs were openly on display in the common parts of the premises a few feet away from where he was sitting.  Whatever his connection with the other 17-year-old occupant, it was never suggested they were in any form of relationship, nor was it the appellant’s case that he even knew about the presence of dangerous drugs.

34.It was perhaps because of the reference to Li Jin that the judge, in respect of Count 1, was at pains to identify the circumstantial evidence which drove him to the conclusion that not only was the appellant in possession of the dangerous drugs in the kitchen, in the sense that they were within his control and he knew they were there, but also that he had the intention to exercise custody and control over them[12].  At no stage throughout the trial did the judge ever say that the basis for convicting the appellant was that he knew or must have known about D1 dabbling or trafficking in dangerous drugs, yet failed to do anything about it when he could or should have done so. 

35.The circumstantial evidence, which the judge summarised (at [24] above)  was compelling.  Firstly, the appellant had signed a two-year tenancy agreement with the landlord of the premises to commence on 28 November 2020[13], a mere 20 days before the commission of the offence on 17 December 2020.  Secondly, he possessed a key to the Unit where the drugs were found.  Thirdly, he was found present sitting a few feet away from 16 packets of dangerous drugs, openly displayed and ready for trafficking in the kitchen of the premises, the door to which was open at the time[14]. Fourthly, the appellant resided in the premises in the bedroom next to the kitchen.

36.It was not the applicant’s case that he lived with someone whose habits he knew about but disapproved of, yet was resigned to tolerate because of his close personal relationship with that person.  According to the appellant, he had only been introduced by Ng to D1 in October 2020, the month before the appellant signed the tenancy agreement for the Unit.  He claimed that he knew nothing about the presence of the dangerous drugs in the kitchen at all, which assertion the judge rejected. 

37.Moreover, strictly speaking, there was no admissible evidence that the appellant was in fact sharing the premises with anyone else and certainly no express finding that he was, although it was part of the Admitted Facts that when the estate agent introduced the appellant to the landlord “it was represented that (he)  would occupy the said premises as residential premises with 2 younger men”[15]. There was also a hearsay statement, adduced through one of the surveillance officers in evidence, that Ng (who was not called as a witness)  told him when he was intercepted that he lived at the Unit and was out taking a stroll. 

38.What the evidence did establish was that the appellant was 32 years of age at the time of the offence: D1 was less than 18 and a “minor”[16], for which reason his aunt was present when he was formally interviewed by the police[17].  Ng’s age seems not to have been disclosed in the evidence.  It was in the context of this marked age difference between the appellant and D1 that prosecuting counsel made the somewhat clumsy remark, about which complaint is now made, that “(the appellant)  knew what was going on and took no steps to stop it”[18].  As we have said, the judge plainly did not convict the appellant on this basis.  Nevertheless, it was a compelling point that the appellant, who was the tenant of the premises and an adult of 32 when D1 was a mere 17, must have been knowing party to what was going on inside the Unit.

39.Although different charges must be treated and judged separately, the evidence on one charge may also in some cases be relevant on another.  In the present case, it is unrealistic to disregard the evidence on Charge 1, when examining the appellant’s involvement in Charge 2.  For there are obvious links between the two premises.  The Unit and the Hut are plainly very close to each other, close enough for the police officer keeping observation to be able to keep the two sets of premises under observation at the same time, although he could not see the actual entrance to the Unit.  The appellant had the key to the Unit in his physical possession and also a key to the Hut in his bedroom inside the Unit (which he denied but the denial was rejected by the judge); and, on his own admission, he had been inside the Hut about a week before, albeit for an allegedly innocent purpose (which the judge also rejected).

40.When a defendant gives evidence to explain a set of facts or circumstances, which is rejected by the tribunal of fact, it is not normally open to him on appeal to suggest an alternative explanation consistent with innocence, when that was not his evidence or his case at trial.  Once the judge had rejected as untrue the appellant’s explanation for his possession of a key to the Hut and his fingerprint inside the Hut, it was not the task of the judge, nor is it the function of an appellate Court, to conjure up or speculate as to alternative explanations in the face of compelling facts or circumstances from which guilt may otherwise be inferred.

41.Moreover, it was an Admitted Fact that the appellant’s left thumbprint was found on the second shelf of a metal rack inside the corridor of the Hut[19], a matter of inches away from where the shoebox with more dangerous drugs was found.  We note that the cocaine found inside the kitchen of the Unit and in the shoebox of the Hut are similar in their presentation and packaging, as well as in their narcotic concentration.  Again, the judge made the specific finding that the appellant knew that there were dangerous drugs in the shoebox and were within his control, and that he had the intention of exercising custody and control over them.

42.These were the judge’s findings in respect of the two charges and there was never any suggestion that the judge found either of the charges proved because of mere knowledge of the presence of dangerous drugs alone and/or his failure to do something about a teenager in his household trafficking in dangerous drugs.  We see no application of the Li Jin point, which on the facts was irrelevant.  This was a simple case of joint possession, on which there was sufficient circumstantial evidence to convict the appellant on both charges, the judge having disbelieved the appellant on all relevant matters.

43.It was for these reasons that the appeal was dismissed.

Ms Mickey Fung SPP, of the Department of Justice, for the Respondent

Mr Richard D Donald and Ms Nisha Mohamed, instructed by Simon Si & Co, assigned by the Director of Legal Aid, for the Appellant