HKSAR v. Singh Jaswinder

CACC 224/2024, [2026] HKCA 591

On Appeal From [2024] HKCFI 3188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 224 OF 2024

(ON APPEAL FROM HCCC NO 17 OF 2023)

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J U D G M E N T

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1.Following a trial in the High Court before Woodcock J (“the judge”) and a jury, the applicant (who was D2 at trial) was, on 9 October 2024, unanimously convicted of one count of attempting to traffic in a dangerous drug, namely 8,957 grammes of a crystalline solid containing 8,907 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and section 159G of the Crimes Ordinance, Cap 200. On 10 October 2024, he was sentenced to 28 years and 9 months’ imprisonment.

2.By a Form XI filed on 21 October 2024, the applicant sought leave to appeal against both his conviction and sentence. The respondent opposed his application in respect of conviction, but not sentence.

The prosecution case

3.On 17 May 2021, Customs and Excise officers examined a container, which had arrived in Hong Kong from Thailand, and found it to contain five picture frames, within which were concealed a total of nine bags of “Ice”.

4.An initial attempt to make a controlled delivery to the purported consignee, on 22 May 2021, was not successful. It was followed by a second attempt, on 25 May 2021, during which the purported consignee contacted the freight forwarding company[1] using no less than three different mobile telephone numbers. D1 (who was acquitted of the count after trial) in due course approached the undercover Customs officers, presented a copy of the bill of lading stored in his telephone and collected the parcel, whilst the applicant positioned himself nearby in Tai Kok Tsui, Kowloon. As soon as D1 had taken delivery of the parcel, the applicant hailed a taxi to meet him.

5.There was admitted fact evidence[2] that the applicant had on his mobile telephone (Exhibit P91) some photographs, the printouts of which were produced as Exhibit P92, which included the photograph of a mobile telephone displaying the telephone number of the freight forwarding company, namely 3162 8577 (“the photograph”). PW11, an employee of the freight forwarding company, confirmed in evidence that, prior to the controlled delivery operation, he had called the alleged consignee using that number.

6.There was no dispute that D1 and the applicant then took a taxi to D1’s home in Lin Fa Tei Village on Kam Sheung Road in Yuen Long. They exited the taxi before entering D1’s home together, leaving the parcel in the boot of the taxi.

7.Since Customs and Excise officers had waited for a while but did not see the applicant or D1 returning to the taxi, they seized the parcel from its luggage compartment and went to arrest the two men inside D1’s home. Under caution, both D1 and the applicant claimed to be helping each other to collect the parcel without knowing of its contents.

8.In his closing speech to the jury, prosecuting counsel suggested that “it was no coincidence” that “the defendants came to be in possession, custody or control of the parcel”[3]. The prosecution also alleged that the named consignee[4] on the bill of lading was a bogus person who did not exist[5]. Accordingly, D1 and the applicant were “the only two people…who were involved with this parcel”[6], while D1 was the person with whom PW11 had contact or spoken throughout[7]. The case against the applicant was put by the prosecution as follows[8]:

“From the evidence it would seem that he hailed a taxi, waited by the roadside, sat in the taxi, and I’m sure Mr Bullett will rely on the very same thing, stood while the taxi driver sorted out the back trunk, and on arrival in the village, he looked around near the gate. It might seem to you that $500 for a Form 8 holder who has no job is quite a lot for doing so little. And why would the 1^st defendant give the 2^nd defendant $500 essentially for fetching a taxi and keeping him company?

Did D1 have knowledge about the drugs, valued at almost $5 million, and he needed someone he could trust with the same knowledge, who would help him to transport the parcel of that consignment, and who would, on arrival, make sure they hadn’t been followed.”

The defence case

9.As with D1, the applicant elected not to testify at trial. He relied on the content of his post-recorded statement to Customs officers to the effect that it was D1 who asked him to carry the parcel and that he did not know what was inside[9]. He had been promised a reward of $500.

Summing-up; and exchanges between the judge and counsel

10.The judge divided her summing-up into two parts, which were delivered over two days. She told the jury at the outset that, notwithstanding a lack of direct evidence, the prosecution were inviting them to draw an inference against each defendant as to his knowledge of the drugs inside the parcel[10]. She gave the jury the usual directions, along with examples, on the drawing of inferences, which spanned some three pages of transcript[11].

11.For the purpose of this application, the directions which are impugned in this case derived from the following passages on the first day of the judge’s summing-up[12]:

“There is an image on the 2^nd defendant’s phone taken by his phone camera the day before, 24 May 2021, at 2.44 in the afternoon. That is the photograph of that Nokia phone displaying telephone number of the freight forwarding company. As I said earlier, it is an admitted fact that that phone number was a landline of that freight forwarding company, and Mr Lau from that company gave evidence and confirmed that he was PW11. Prosecution may suggest that this links the 2^nd defendant to that parcel containing dangerous drugs that arrived from Thailand being dealt with by Mr Lau’s company before even the controlled delivery on 25 May. However, the 2^nd defendant told the arresting officer that he had only been asked by the 1^st defendant to help collect a parcel. He knew nothing else about this parcel. So why did he have Mr Lau’s office phone number the day before taken on 24 May?

Now, the defence, on the other hand, suggests that as far as the 1^st defendant is concerned, he was only helping the 2^nd defendant who called and asked for help. He had no idea what the parcel contained. He did not bring the parcel into his home. He left it in the boot. In fact, he had nothing to do with it after he picked it up and put it in the boot because it did not belong to him. He got a lift home and had nothing else to do with it from that moment. There is nothing to show he intended to traffic in dangerous drugs, and certainly not enough evidence to infer he intended to traffic in dangerous drugs.

As far as the 2^nd defendant is concerned, the only evidence is that he sat in a taxi with the 1^st defendant and the parcel in the boot. When he got out, he did not even take the parcel with him. There is no evidence to suggest or infer, and certainly there is no evidence to infer the only reasonable inference that he had knowledge of the contents of the parcel. The evidence is not sufficient, as you heard Mr Bullett say this morning.

The defence is suggesting there is more than one inference that you can draw, and that there is an inference you can draw in favour of both defendants. Therefore, you cannot draw any adverse inference against either…”

12.At the end of the first day of the summing-up, Mr Bullett, for the applicant on this application and at the trial, made before the judge some of the points which have now been repeated before me. In particular, he argued by reference to the Court of Final Appeal decision in Hau Tung Ying v HKSAR[13] that he should have been given an opportunity to address points that were not made by the prosecution yet had been made by the judge on her own motion[14]. He also accused the judge of descending into the arena[15].

13.To those submissions, prosecuting counsel responded[16]:

“My learned friend is suggesting that in my closing speech, I have to go through every minutia of the prosecution case that might lead to an adverse inference. And I don’t believe there’s an authority for that.”

14.In her ruling, the judge said[17]:

“…I am not limited to repeating only what has been specifically raised in closing speeches. In any event, my view is that it was raised in closing speeches. This is not a case where you have been taken by surprise. That telephone number screen shot was in evidence and has been referred to by the expert in his report, and in cross-examination. It was out there. You haven’t been taken by surprise.

You choose not to address, it is not something that I have any control over. But you’re not taken by surprise, that is the most important thing.”

Sentencing

15.The judge sentenced the applicant in accordance with the sentencing guidelines prevailing at the time. She said:

“The tariff for the drug ice is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point of trafficking between 4,000 and 15,000 grammes of ‘Ice’ would attract a sentence of between 26 to 30 years’ imprisonment after trial. Here, the mathematical starting point for 8,907 grammes of ice would be 27 years and 9 months’ imprisonment.”

16.The judge then enhanced the starting point by one year on the basis of the applicant’s status as a Form 8 holder and, finding no mitigation factors, she passed a sentence of 28 years and 9 months’ imprisonment.

Grounds of appeal

17.In this application for leave to appeal against conviction, Mr Bullett and Mr Poon have advanced six grounds of appeal against conviction, as follows:

(i)  Whilst the prosecution did not specifically refer to the photograph in its closing speech, the judge made reference to it in her summing-up so as to enable the jury to draw an adverse inference against the applicant (Ground 1);

(ii)  The jury were not given proper guidelines as to how such an inference could properly be drawn (Ground 2);

(iii)  The judge by implication told the jury that the photograph could link the applicant’s knowledge of the parcel as early as the day before his arrest, which could undermine if not be inconsistent with the applicant’s innocence, but nevertheless failed to give the jury a lies direction (Ground 3);

(iv)  The above was exacerbated by a risk of the jury engaging in an impermissible line of reasoning by using D1’s post-recorded statement against the applicant (Ground 4);

(v)  The judge unfairly refused to amend the impugned directions or allow the defence to re-address the jury (Ground 5); and

(vi)  The conviction was unsafe and unsatisfactory (Ground 6).

18.Whilst not specifically pleaded as a ground of appeal, Mr Bullett argued that there is also a lurking doubt in the applicant’s conviction[18].

The respondent’s submissions

19.In reply to the applicant’s argument, Mr Li, for the respondent, submitted that, regardless of whether prosecuting counsel made reference to the photograph in his closing speech, it was still part of the prosecution evidence, which remained unaltered, that the applicant knew the parcel contained dangerous drugs. It followed that the jury could use the photograph as one of the primary facts in drawing an inference against the applicant. The judge could not be criticised for offering her views on the evidence, provided that she made it clear to the jury that they were the sole arbiters of fact.

20.Mr Li argued that it would not have been helpful for the judge, having given the jury impeccable directions on inferences, to give them a lies directions, because the applicant did not, in his post-recorded statement or at all, explain, let alone tell a lie, about when and in what circumstances he took the photograph using his mobile telephone.

21.Whilst the conviction could not be said to be unsafe or unsatisfactory, Mr Li conceded that the appeal against sentence was reasonably arguable in light of the revised sentencing guidelines in Huang Ruifang (No 3)[19].

Consideration

22.I should make certain observations on the photograph (Exhibit P92(2)), which is the principal focus of the applicant’s argument. The photograph displays somebody holding a Nokia mobile telephone, the screen of which depicts what appears to be two call records relating to the number 3162 8577. As revealed in the forensic examination report on D2’s mobile telephone (Exhibit P91), the photograph is one of the images stored in the image files of the telephone, and is stated to have been captured and modified on 24 May 2021 at 14:44:47.

23.Since it is not entirely clear from the evidence as to how the photograph came to be in the applicant’s mobile telephone, I specifically invited submissions from counsel on the correctness (or incorrectness) of the judge’s statement that “[t]here is an image on the 2^nd defendant’s phone taken by his phone camera the day before, 24 May 2021, at 2.44 in the afternoon”[20]. In response to my invitation, Mr Li informed me that, on a proper reading of Exhibit P91, the photograph was not sent to the applicant’s mobile telephone by someone; instead, it was evidently taken either by him, or by someone else using the same device on 24 May 2021 at 14:44:37. Mr Bullett did not submit otherwise and I shall accordingly proceed on the basis as advanced and clarified by Mr Li.

24.Mr Li also does not take issue with the fact that prosecuting counsel did not refer to the photograph at all during his closing address. Consequently, prosecuting counsel never made the point which the judge was to make about it in her summing-up or the impugned directions. The question is, however, whether the point made by the judge would have impermissibly altered the prosecution case against the applicant or rendered the case in some way unfair to the applicant.

25.In their post-recorded statements, both D1 and the applicant pointed their fingers at each other and claimed that they were only helping the other, although, in light of the circumstantial evidence led by the prosecution, both of them could have been the person who manipulated the other in the attempted trafficking. For example, the prosecution evidence showed, on one hand, that D1 was responsible for contacting the freight forwarding company on 25 May 2021 for the receipt of parcel and, on the other, D2 had the contact number of the freight company in his mobile telephone on 24 May 2021 and deliberately kept a distance from D1 in order to observe him taking delivery of the parcel from the undercover Customs officers on 25 May. In acquitting D1, the jury must have rejected the applicant’s account that he was helping D1 to collect the parcel.

26.In this regard, it is contended by Mr Bullett that the judge unfairly pointed out to the jury, of her own motion, the significance of the photograph, on which the prosecution and the defence did not appear to have focused in their speeches, thus resulting in the conviction of the applicant. I find this argument difficult to accept. The evidence concerning the photograph was always there in the Admitted Facts and was undoubtedly relevant to the applicant’s knowledge. This may be contrasted with a case where the defence has been caught by surprise by the prosecution’s late disclosure of a piece of evidence which is against the defendant’s interests. Absent any issue of non-disclosure, it was a matter for the prosecution and the defence whether they wished to deal with the evidence of the photograph in their respective speeches. If the judge wished to canvass the significance of the photograph with the jury, as one of the primary facts relevant to the drawing of an inference, it would be rather strange and unusual to require the judge to consult the parties and give them a chance to deliver a second speech before she proceeded or continued with her directions.

27.In my judgment, the judge was not circumscribed by the way any of the advocates had put their respective cases, provided that she did not put a new case, which the applicant had no proper chance to deal with. On the contrary, she was entitled to look at the evidence and to indicate its possible significance to the issues the jury had to decide, provided she made it clear that the jury were the sole judges of the facts. In any event, there is nothing inaccurate or misleading in the content of the impugned directions, which, along with other appropriate directions on inferences, were correctly given to the jury in order to assist them in drawing a proper inference.

28.Furthermore, I do not think it is reasonably arguable that the judge should have given the jury a lies direction, since there was in fact no proven lie: the applicant did not say, in his out-of-court statement, exactly when he was supposedly asked to help D1 with the parcel, whether before or after 24 May 2021. All the evidence established is that there was an unexplained photograph taken either by the applicant or someone else using his telephone on his mobile telephone on 24 May 2021.

29.Accordingly, I refuse the application for leave to appeal against conviction on all grounds. The applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which he has served in custody pending the determination of his appeal, if it were to come to the view that there was no justification for the renewal of the application.

30.As to sentence, in light of the revised sentencing guidelines now established in Huang Ruifang (No 3), and the Court’s clarification of the application of those guidelines in HKSAR v Lam Man Tak[21], I shall grant the applicant leave to appeal against his sentence.

Mr Andrew Li SPP, of the Department of Justice, for the Respondent

Mr Andrew Bullett and Mr Marco Poon (on a pro-bono basis), instructed by Lee Law Firm, assigned by the Director of Legal Aid, for the Applicant