HKSAR v. Lam Cheuk Ngai

HCMA 279/2023

[2024] HKCFI 2178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 279 OF 2023

(ON APPEAL FROM WKCC 409 OF 2023)

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BETWEEN

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J U D G M E N T

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1.The Appellant was convicted after trial of one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The Appellant was sentenced to 4 months and 2 weeks’ imprisonment. The Appellant now appeals against conviction.

Prosecution Case

2.The prosecution case, as briefly stated by the Magistrate, on 14 January 2021, the Customs intercepted a parcel mailed from Canada at the Hong Kong International Airport.  Its shipping label stated that the sender was “Yu Ching Lee” from Canada, and the recipient was the Appellant with his residential address.  Although its content was stated on the shipping label to be “Clothes”. In truth, upon subsequent examination by the government laboratory, the parcel contained 224 grammes of herbal cannabis and 226 grammes of herbal cannabis with a street value of $112,050. 

3.And at 1552 hours on the same day, the Customs carried out a controlled delivery operation.  A customs officer, PW1, purported to be a postman, arrived at the Appellant’s said address on the parcel.  The Appellant answered the door and signed on the acknowledgment form of receipt.  He further confirmed that he was the listed recipient on the shipping label and that the parcel was correctly delivered. 

4.At around 1556 hours on the same day, upon arrested and cautioned, the Appellant stated that he received a parcel on behalf of his friend, one “Cheung Pak-long”, that he would contact Cheung for instructions on handling the parcel.  The accuracy and voluntariness of the statement was not in dispute. 

Defence Case

5.The Appellant elected to give evidence without calling any other witness. According to him, a week before he received the parcel, his friend Cheung Pak-long, asked him to receive a parcel containing forged Rolex watches and branded clothing.  In return, Cheung would pay him $2,000 to $3,000.  He thus received the parcel on 14 January 2021 without knowing that it contained drugs. 

Magistrate’s Findings

6.The Magistrate found the prosecution witness truthful and reliable and accepted his evidence.  On the other hand, the Appellant’s evidence was inconsistent and unreasonable. 

7.Firstly, when the customs officer opened the parcel and asked him what the material inside was, he said that he did not know and that he received it for someone else for $2,000 to $3,000.  This was contrary to his testimonies that he was told and knew that the parcel contained forged Rolex watches and branded clothing. 

8.Secondly, under cross-examination, he further shifted his story and claimed that he did not know what was inside the parcel as he always did purchases in Taobao. 

9.Thirdly, his evidence was also unreasonable when he testified that he did not think being paid $2,000 to $3,000 just to receive a parcel was a large amount, and that the offer did not raise his suspicion.  According to his evidence, he was told that Cheung did not have a proper address to receive a parcel, hence required his assistance.  If it was so simple, the Magistrate failed to see any reason at all why Cheung would be offering that amount of money, and it simply defied logic that the Appellant would not be suspicious about it.  The Magistrate therefore found the Appellant to be dishonest and unreliable and rejected his evidence. 

10.Further, the Magistrate also considered that the circumstantial evidence against the Appellant was overwhelming:  The stated recipient of the parcel was the Appellant; the label stated its contents to be “clothing” but clearly for the purpose of concealing its real contents; The label also stated that the parcel was posted from Canada by an individual, which was not the usual local purchases, Hong Kong people made online with commercial companies. 

11.Lastly, he signed the acknowledgment form of receipt and confirmed that he was the listed recipient and that it was correctly delivered. The Magistrate drew the only and irresistible inference that the Appellant was trading drugs with an overseas individual illegally, and that he knew he was trafficking in a dangerous drug at the material time.  Therefore, the Appellant is convicted accordingly. 

Grounds of Appeal

12.Mr McGuinniety put forward the following grounds of appeal.  For the first two grounds, the Magistrate failed to consider and analyse the Appellant’s evidence, in that the Appellant had assisted C&E in a controlled delivery operation for some several hours albeit without success, but this assistance was seemingly unfairly ignored by the Magistrate, and that surely ought to have resounded to the Appellant’s benefit but it was simply ignored. 

13.Thirdly, the Magistrate criticised the Appellant’s evidence as “inconsistent and unreasonable”, particularly about how the Appellant’s storyline shifted in regard to his explanation about knowing what was inside the parcel.  However, the Appellant’s cautioned statement made it clear that he volunteered to C&E that he received the parcel on behalf of a friend with a monetary reward to $2,000 to $3,000 which was exactly his evidence in court, saying that he received it for someone for $2,000 to $3,000.  As such, there is no inconsistency in his evidence. 

14.Fourthly, the Magistrate wrongly used his own knowledge to find against the Appellant as to his findings whether the label also stated that the parcel was posted from Canada by an individual, which was not the usual local purchases Hong Kong people made online with commercial companies.  But there was no such evidence adduced by the prosecution and the Magistrate has simply assumed the matters which were not canvassed in the trial. 

15.And lastly, the inference even if drawn would certainly not be the only inference, bearing in mind the Appellant’s clear record, he had been duped by the person who claimed to be Cheung Pak-long, that the Appellant had been waiting for parcel delivery containing forged Rolex watches. 

16.The Appellant had no knowledge that the parcel in question contained drugs.  His immediate assistance to C&E with a further controlled delivery which demonstrate his innocence in the most practicable manner possible and was likely not a trafficker himself. 

17.Though it may have been that the Appellant was indeed suspicious of the parcel in question, but that suspicion is a far cry from knowledge “beyond reasonable doubt”. 

Respondent’s Reply

18.On the first two grounds, Respondent stated that whether the Appellant was willing to cooperate with the law enforcement agency had no direct bearing on the Appellant’s actual knowledge of the drugs in the parcel.  Respondent relied on the case of香港特別行政區 訴 何燕文, CACC 203/2015. 

19.In that case, the Applicant returned to Hong Kong in a cross-border private car from Shenzhen Bay.  When the customs officer searched the Applicant’s reusable bag, they found four envelopes each containing ‘Ice’.  Under caution, the Applicant said that she was asked by a friend named ‘Ah Man’ to take the envelopes back to Hong Kong from Shenzhen.  The Applicant also stated that she had never opened the envelopes. Afterwards, the Applicant agreed to participate in a controlled delivery which was intended to bring the drugs to the recipient. 

20.The Applicant, under the supervision of customs officers, called ‘Ah Man’ seven times, but no one answered the phone.  At last, the Applicant refused to continue.  After considering the available evidence, the Court of Appeal held that there was sufficient basis for the jury to find the Applicant knew the reusable bag she was carrying contained drugs.  In fact, the Applicant’s participation in the controlled delivery was not even an appeal issued in 何燕文.  Clearly, such participation was neither here nor there.  It is submitted that it was not wrong for the Magistrate not to mention the evidence relating to the Appellant’s cooperation.

21.As to the third ground, Respondent submitted that there was indeed inconsistency in the Appellant’s evidence.  When the customs officers asked the Appellant what he knew about the parcel he had received, he said he had no idea.  He just helped his friend to collect it for $2,000 to $3,000.  But the Appellant, during examination-in-chief, only in that stage he said he knew the parcel contained forged Rolex watches and branded clothing.  This is different from the “no idea” said to the customs officers. 

22.As to the fourth ground, counsel for the Appellant submitted that there was no evidence that the parcel, with the label stating “from Canada” by an individual, was not the usual local purchases Hong Kong people made from a commercial company.  But it is submitted that the Magistrate only applied common sense and everyday experience to analyse the evidence as it is perfectly entitled to do so. 

23.Lastly, on the inference, it is submitted that there is sufficient basis for the Magistrate to hold the Appellant had knowledge about the drugs as there is also no dispute that the street value of the drugs was $112,050.  It is unreasonable for the Appellant to be entrusted with the task of handling such substantial value of drugs without being informed the parcel’s actual content.  His friend would certainly fear for losing the drugs if the Appellant opened the parcel without his friend’s permission and only then discovered the drugs inside. Therefore, the Appellant must be aware of the actual content when he agreed to receive the parcel. 

Consideration

24.In the recent Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as an intermediate appellate court may admit within its statutory power.  The judge must be satisfied that the Appellant’s guilt has been proved reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies the appellate’s intervention to reverse the decision of the Magistrate to convict. 

25.The Court recognised the appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand.  Hence, it must exercise caution when considering findings of facts based on oral testimony.  Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law. 

26.On the first two grounds concerning the failure of the Magistrate to mention the Appellant’s assistance in the controlled delivery operation, it is submitted that such assistance surely ought to have resounded to the Appellant’s benefit. However, that operation had indeed continued for some several hours but without success.  Such participation was really neither here nor there.  It did not support Appellant’s allegation that someone had asked him to receive the parcel.  Not to mention the value of the drugs was over $100,000 and it would be more than logical that the Appellant may be able to contact the person involved if the Appellant’s saying may be true. 

27.Besides, as also referred by the Respondent in the above case 何燕文, despite the assistance in the controlled delivery but in vain, there was still sufficient available evidence to find the Appellant’s knowledge of the contents of the parcel, which was the core issue of the present case, instead of the later assistance to the authority.  Thus, the Magistrate’s failure to mention the above assistance was not wrong and did not affect the outcome of his analysis.  Therefore, this ground must fail. 

28.On ground 3 concerning the consistency of the Appellant’s evidence, the Respondent correctly pointed out that the Appellant’s initial response of having no idea was obviously different from his latest saying in court that he knew the parcel contained forged Rolex watches and branded clothing. 

29.As in the post-recorded statement of the Appellant, the initial response (seen in appeal bundle page 41 to page 42), “I immediately presented the court search warrant and entered the abovementioned unit.  I asked you. ‘What do you know about this parcel?’ You replied to me, ‘No idea’.  I immediately opened the parcel in front of you and showed you the prohibited items inside the parcel.  I asked you, ‘What are these?’ You … replied to me, ‘No idea. (I)  helped someone collect (it)  for two (thousand to)  three thousand dollars, (but I)  haven’t received the money yet’.”  Therefore, the inconsistency of the Appellant’s evidence is obvious.  This ground also failed. 

30.On ground 4, relating to the Magistrate stating that the label was from Canada by an individual, which was not the usual local purchases Hong Kong people made online with commercial companies.  He was just applying daily experience and the observation was practical with common sense.  There was no merit in criticising the Magistrate’s remark.  This ground has also failed.

31.Finally, as drawing inference, I had the opportunity to go through all the evidence, including inspecting the photos in this case.  I do agree with the Magistrate’s finding that the circumstantial evidence was overwhelming, including that the recipient of the parcel was the Appellant;  The content was stated to be clothing, concealing its content; The sender was just an individual, instead of commercial company, and also the Appellant’s acknowledgment of the receipt and his confirmation of the delivery.  Not to mention the high value of over $100,000 of the drugs, it would not have been left to someone without knowledge in all the circumstances. 

32.Therefore, all appeal grounds failed.  The Magistrate’s findings was reasonable and correct.  I am also satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on all the evidence before me. 

33.Therefore, the appeal is dismissed accordingly.  The Appellant has to serve the sentence.

Mr Brandon Ryan, PP of the Department of Justice, for the Respondent

Mr Edward Luke McGuinniety, instructed by Chan & Associates, for the Appellant