HKSAR v. Chow Kam Lun

CACC 230/2022 [2024] HKCA 678

On appeal from [2023] HKCFI 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 230 OF 2022

(ON APPEAL FROM HCCC NO 214 OF 2021)

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J U D G M E N T

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1.On 8 December 2022, following a trial before Anna Lai J (the Judge) and a jury, the applicant was convicted of one count of trafficking in a dangerous drug, namely 12,014.2 grammes of a solid containing 9,836.4 grammes of cocaine. He was sentenced to 30 years’ imprisonment.

2.On 21 December 2022, the applicant applied for leave to appeal against his conviction and sentence.  He also applied for legal aid on five occasions which were refused.  The applicant raised two grounds of appeal by a letter dated 17 July 2023: the Judge did not give the jury proper directions and did not correctly answer the jury’s questions, rendering the trial unfair (Ground 1); and there were inconsistencies in the quantity of dangerous drug on the Master List of Exhibits and Trial List of Exhibits (Ground 2).  The applicant has not particularised his complaints under Ground 1.

The prosecution case

3.On the morning of 6 December 2019, the applicant arrived at the Hong Kong International Airport from Johannesburg, South Africa, and was intercepted by a Customs Officer.[1]  After being asked if he had anything to declare, to which the applicant responded no, an X-ray examination was conducted on the applicant’s black suitcase, a dark cross-shoulder bag and a black handbag also in the applicant’s possession.[2]  The X-ray examination of the black suitcase revealed something unusual was present inside, and a baggage examination was conducted.  The Customs officer found the black suitcase was locked with a combination code, and asked the applicant to unlock it.  The applicant said that he had forgotten the code, and with the applicant’s consent, the Customs officer broke open the combination lock.[3]  Upon opening the black suitcase, the Customs officer found inside a packet (Exhibit P13) and twelve blocks (Exhibits P1 to P12). 

4.The applicant was asked what was in Exhibit P13, and he stated that he did not know what was contained inside the packet.  After it was tested positive for cocaine, he stated under caution that he did not know what was inside or how he got it. [4] He was then asked about the twelve blocks, Exhibits P1 to P12. After one of the blocks had also tested positive for cocaine, he stated that the twelve blocks were gifts given to him by a merchant called Ms Wong at a hotel.  He said he did not know Ms Wong’s full name and that he had no way of contacting her.  He explained he had just brought the blocks to Hong Kong for Ms Wong and he had not received any reward for bringing them.[5]

5.Exhibit P13 was wrapped in silver-coloured adhesive tape.  Exhibits P1 to P12 were wrapped in gift paper and then with transparent adhesive tape and silver-coloured adhesive tape.[6]  Five out of twelve of the blocks of cocaine had different layers of wrapping, and the applicant’s fingerprints were found on one of the layers of the adhesive tape.[7]

6.The total  quantity of cocaine in Exhibits P1 to P13 had a street value of about $12.9 million.[8]

7.The following circumstantial evidence was used by the prosecution to prove that the applicant knew the suitcase contained a dangerous drug at the time:

(a)  The fingerprints of the applicant were found on the adhesive tape wrapping of five blocks of cocaine, implicating he must have been involved in the wrapping of the drug, in particular P11, which only had three layers of wrapping - the outermost was a cling wrap which was transparent, the second was a layer of adhesive tape where four fingerprints of the applicant were found, and the third lawyer was also cling wrap.  The prosecution said it was not difficult for somebody to see through the content of the packet that it contained something like white powder;[9]

(b)  Exhibits P1 to P13 were over 12 kilogrammes in weight, which made the suitcase so much heavier, and it would have alerted the applicant that there was something inside;[10]

(c)  Exhibits Pl to P13 were valued at over $12 million.  A drug supplier would not have entrusted a real stranger or an innocent person to carry that amount of drug;[11]

(d)  Exhibits P1 to P13 had filled up about half of the suitcase, and there were not many of the applicant’s belongings inside.  Raising the question why the applicant carried such a big suitcase;[12]

(e)  The applicant told the Customs officer he did not know who Ms Wong was.  The prosecution said the applicant was trying to protect the supplier;[13]

(f)  The WhatsApp messages sent by the applicant to Ho Ka-lok (HO) included HO telling the applicant to be alert and remember that one walked in the front and one walked at the back;[14] and the message the “fat in the fire” (出事), which was sent after the applicant was intercepted but before the Customs officer found Exhibits P1 to P13 in his suitcase, showed that the applicant knew that there was a dangerous drug inside[15].

The defence case

8.The applicant gave evidence and also called a defence witness, Mr Cheng Ka Lok (DW2), who was arrested on the same day as the applicant.  DW2 had pleaded guilty to one count of trafficking in a dangerous drug involving twelve blocks of cocaine in his own suitcase that he brought to Hong Kong on the same trip with the applicant[16] and was serving a prison sentence.[17]

9.The applicant testified that HO was his secondary school schoolmate, who introduced DW2 to him and that he had known them for 10-odd years.  Upon the invitation of DW2, who arranged air tickets and hotel accommodation, the three of them went to South Africa for a trip.  He and DW2 shared the twin room, and HO stayed in a single room[18].  On the second day after they arrived, DW2 introduced a merchant, Ms Wong, to him and HO.  Ms Wong spoke English and Putonghua, but he did not know those languages.[19]  Most of the time, Ms Wong communicated with DW2 in English.[20]

10.On the day before their flight to Hong Kong, Ms Wong meet them and gave them ten boxes of chocolate contained in a black cloth bag (the bag) as Christmas presents.  Upon returning to the room at about 2:00 am, after they had been out drinking, the applicant saw the bag was placed next to the television cabinet.[21] The next day, they missed their flight, and DW2 changed the flight ticket to the following day.  DW2 asked them to go to the supermarket, and DW2 bought some silver-coloured adhesive tape, transparent adhesive tape, gift wrapping papers, and cling wrap.  DW2 said they should go back to the hotel room to wrap the chocolate with the wrapping papers.[22]  DW2 took out ten boxes of chocolate and twelve blocks of a black object with cling wrap from the bag.  DW2 stated that it was rhino horn powder given by Ms Wong.  He and HO wrapped the chocolate boxes as requested.  He later helped DW2 tear the silver colour adhesive tape to wrap the five black objects.[23]  He then went for a shower and packed his own suitcase, including four boxes of chocolate,[24] leaving it unlocked by the side of the cabinet.  He then went to bed.[25]

11.When the applicant woke up the next day, DW2 had already got dressed.  He took a shower, and DW2 asked him if he still had anything to put inside the suitcase.  DW2 then pushed the suitcase downstairs to check out.[26] His suitcase was all along handled by DW2.[27]  When DW2 put his suitcase onto the scale, he asked DW2 why his suitcase was so much heavier, but DW2 had already put it onto the conveying belt.  DW2 stated that he put the gifts from Ms Wong into his suitcase.[28]  He became angry and walked away.[29]  Under cross-examination, the applicant confirmed that he was taught about drugs in school and instructed not to carry anything for anybody.[30]

12.The applicant was sitting in first class with HO, while DW2 was sitting in economy class during the flight.  He told HO that he did not know whether the thing inside the suitcase was really rhino horn powder.  HO said that she did not know whether it was illegal or not.  HO advised him to walk separately from DW2, one in the front and one behind.[31]

13.The applicant walked to the luggage waiting area, and he did not pay attention to DW2.  He parted from HO and sat down somewhere, waiting for his luggage.[32] That was why he communicated with HO via WhatsApp.[33]  HO asked him to be fully alert because he just woke up and looked blank.[34]  The “fat in the fire” message was sent by him to HO after the Customs officer had already cut open Exhibit P13 and told him that it was cocaine.[35]  He did not know that a dangerous drug was concealed in his suitcase.[36]

14.DW2’s evidence was in line with the applicant’s evidence.  DW2 also stated that the day before they returned to Hong Kong, he had taken out all the chocolate from the applicant’s suitcase and thrown them away.  He put the twelve blocks of cocaine inside the applicant’s suitcase.[37]  He did not tell the applicant anything about the cocaine.[38]

The jury’s questions

15.The jury retired to consider its verdict at around 1:00 pm on 7 December 2022, and at 3:35 pm the jury submitted the following question:

“We would like to know that if we can’t reach a verdict we have to let the judge know, judge will deal with the issue. What is “judge will deal with matter?” The judge will dismiss us? Or she give us further instruction and let us discuss afterward? Thank you”.[39]

16.After discussing the question with counsel, the Judge in response asked the jury to consider three matters.  First, whether they had reached the situation that they could not reach a verdict.  Secondly, whether there was any matter concerning the law or a legal issue that they would like her to repeat, explain or clarify.  Thirdly, whether there was any matter relating to the evidence or the facts they would like her to repeat or clarify.[40]

17.The jury submitted a written response at 4:20 pm, in which they stated:

“(1) Yes.

(2) Is there any penalty if import “Rhino Horn Power (sic)” to HK without Custom clearance?

(3)  No.”

18.After discussion with the prosecuting and defence counsel, the Judge read back the relevant evidence of the applicant to the jury.  The Judge explained that the words “illegal stuff” were uttered by HO who did not testify during the trial.  She noted that there was no evidence before them as to the status of rhino horn and that they should not speculate.  She referred to the applicant’s evidence in cross-examination; that is, he did not know whether rhino horn powder was “illegal stuff”.  She explained that by this answer, he did not know whether or not it was illegal, whatever the status of rhino horn.  She emphasised that the issue that the jury had to consider was whether the applicant had knowledge of the existence of the dangerous drug in his suitcase when he was intercepted by the Customs officers.[41]  She then repeated the directions she had given earlier, saying that they had to return a true verdict according to the evidence and that if they could not reach an agreement, they must say so.[42]  The jury retired at 4:35 pm.

19.Shortly after 7 pm, the court received another note from the jury, which read, “To judge, we couldn’t reach a majority verdict (neither seven to two nor eight to one).”.[43]

20.Shortly before the court resumed at 7:31 pm, there was another note from the jury which read,  “To judge, on the document to explain “Trafficking in Dangerous Drug” p 4, “If you are sure that the defendant was in physical custody of the suitcase and he knew that it contained a dangerous drug, then he was in possession of dangerous drug in the suitcase”. We would like to know in what extent the word “sure” in this statement.  Could you please give us a specific example to make it clear?  If we are “sure” in the case by common sense on our own wisdom but without the solid direct evidence, can we convict the defendant is guilty?”[44]

21.After discussion with the prosecuting and defence counsel, the Judge told the jury that it was not appropriate to give them any example to explain the meaning of “sure”.  She repeated that “sure” was the same as beyond reasonable doubt and gave the directions on the standard of proof and circumstantial evidence:[45]

“In this case, there is no direct evidence that the defendant knew that the suitcase contained dangerous drug. The prosecution relies on circumstantial evidence.

Circumstantial evidence can be powerful evidence.  Indeed, it can be as powerful as or even more powerful than direct evidence.  But it is important that you examine it with care and consider whether the evidence which the prosecution relies upon to prove its case is reliable and whether it does prove guilt, or whether, on the other hand, it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt on the prosecution case or even destroy the prosecution case. ..”

22.There was no further query from the jury, and they retired at 8:34 pm on 7 December 2022 to rest overnight.  They resumed their deliberations at 9:32 am on 8 December 2022.  The jury reached a verdict at 11:22 am that day, convicting the applicant of the offence of trafficking in a dangerous drug by a majority verdict of 8 to 1.

Leave to appeal against conviction

Ground 1

23.The applicant complains that the Judge did not give the jury proper directions, nor did she answer the jury’s questions properly.  However, he did not provide any particulars in support of his complaint.

24.The Judge gave a very thorough summing-up and carefully followed the relevant specimen directions.  She comprehensively summarised the evidence and fairly presented the issues for the jury to consider.  There was nothing improper or lacking in the Judge’s summing-up.

25.As to the questions raised by the jury, the Judge addressed them after consulting both counsel, and the responses she gave to the questions addressed the matters that had been raised adequately.  There was no objection from defence counsel to the answers given by the Judge.  On each occasion, defence counsel agreed with the proposed answers to be given to the jury.[46]

26.Of the question regarding the offence of trafficking in a dangerous drug, the Judge emphasised with the jury the elements of the offence and what the prosecution has to prove.  She read back the relevant evidence of the applicant to the jury and reminded them that the issue before them was whether the applicant knew there were dangerous drugs inside his suitcase.  The applicant’s evidence was that he did not know whether the importation of rhino horn powder was illegal in Hong Kong, and on this issue, the Judge instructed the jury not to speculate[47].

27.Of the question regarding the meaning of the word “sure” and whether they could convict the applicant if there was no solid direct evidence.  The Judge had told the jury in her summing-up that there was no direct evidence to show that the applicant had knowledge of the presence of the dangerous drug and explained what was meant by circumstantial evidence.[48]  She reiterated her directions on the standard of proof and circumstantial evidence.  She was careful to ensure that she did not use any example of what was meant by “sure”, but instead stressed that “sure” was another way of saying “beyond reasonable doubt”.

28.The directions given by the Judge were given after she had discussed the questions extensively with both counsel, and no objections were raised with the answers she proposed to give to the jury. 

29.The applicant also complained during the leave hearing, that his trial counsel applied for the jury to be discharged, but it was refused by the Judge.  It appears there was an application to discharge the jury when DW2 gave evidence that he knew there was cocaine inside the twelve blocks.  However, as rightly observed, this did not result in any prejudice to the applicant because DW2 testified that he smuggled drugs into Hong Kong, and the applicant was unaware this was taking place.  There was also some discussion regarding the time taken by the jury to deliberate its verdict, but the Judge properly allowed the jury to rest overnight and resume their deliberations the next morning.  There was nothing improper in the way these matters were handled by the Judge and clearly did not result in any unfairness to the applicant.

30.This ground is not reasonably arguable.

Ground 2

31.The Master List of Exhibits (V.2) was not a “dangerous drug examination document” but just a list of exhibits prepared by the Customs officer.

32.Exhibits P1 to P13 were examined by the Government Chemist, and the examination results were set out in the Government Chemist Certificate, which was produced as Exhibit P43.[49]  There were some typographical errors in the Master List of Exhibits (V.2), but it was revised in accordance with Exhibit P43 and served on the defence on 8 August 2022.  The Master List of Exhibits (V.2) was not placed before the jury, and the quantities of drugs in the Trial List of Exhibits used in the trial were accurate.

33.There is no merit in this ground.

Leave to appeal against sentence

34.The applicant did not advance any ground against his sentence.

35.The Judge was satisfied that the applicant’s role was that of a courier and sentenced him to 30 years’ imprisonment.

36.The Judge noted that according to HKSAR v Abdallah [50], the starting point for trafficking in 4,000 to 15,000 grammes of cocaine was 26 to 30 years’ imprisonment.  She also noted that an enhancement for an international element of amounts above 1 kilogramme would not be less than 2 years’ imprisonment.

37.In the present case, 9,836.4 grammes of cocaine on an arithmetic approach would correspond to a starting point of 28 years and 1 month’s imprisonment.  She enhanced the notional starting point by 2 years for the international element and rounded off the sentence to 30 years’ imprisonment. 

38.The Judge carefully followed the sentencing guidelines and the sentence imposed on the applicant cannot be criticised. Even though she categorised the applicant as a courier, he was not a typical courier who is recruited abroad and usually in desperate and dire circumstances, but someone who has gone abroad to smuggle drugs back into Hong Kong.  As pointed out by the respondent, this was an elaborate operation involving several persons in smuggling drugs into Hong Kong, and therefore, a serious case of offending.

Conclusion

39.For the reasons that I have given, I do not find the grounds of appeal reasonably arguable and I refuse the applicant’s leave to appeal against his conviction and sentence.

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

Ms Kasmine Hui, SPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]   Appeal Bundle (AB), 5, at [l].

[2]   AB, 13I-J.

[3]   AB, 7, at [10].

[4]   AB, 14D-F.

[5]   AB, 14H-O.

[6]   AB, 7, at [11].

[7]   AB, 14A-B.

[8]   AB, 10, at [21].

[9]   AB, 15P-16P.

[10]   AB, 16Q-U.

[11]   AB, 17A-F.

[12]   AB, 17F-P.

[13]   AB, 17P-T.

[14]   AB, 80J-L.

[15]   AB, 18B-J.

[16]   AB, 97R-T.

[17]   AB, 97E-G.

[18]   AB, 71G-72Q.

[19]   AB, 72R-U.

[20]   AB, 87M-O.

[21]   AB, 73O-74O.

[22]   AB, 74O-75H.

[23]   AB, 18O-19B.

[24]   AB, 75M-77L.

[25]   AB, 77M-P.

[26]   AB, 78A-N.

[27]   AB, 90A-E.

[28]   AB, 78O-79R.

[29]   AB, 80A-B.

[30]   AB, 89E-H.

[31]   AB, 80C-T.

[32]   AB, 91A-F.

[33]   AB, 81M-N and 91H-K.

[34]   AB, 91L-O.

[35]   AB, 81O-S and 91O-S.

[36]   AB, 84P.

[37]   AB, 96O-U and 96O-Q.

[38]   AB, 98H-K.

[39]   AB, 120P-S.

[40]   AB, 125C-126E.

[41]   AB, 131R-133B.

[42]   AB, 133E-K.

[43]   AB, 134J-M.

[44]   AB, 134Q-135B.

[45]   AB, 145K-O.

[46]   AB, 131F-J and 134I-144F.

[47]   AB, 80E-G and 90S-91F.

[48]   AB, 38A-U.

[49]   AB, 8, at [20].

[50]   HKSAR v Abdallah [2009] 2 HKLRD 437, at [41]-[43].