HKSAR v. Cheung Chi Fung (Previously Known As Cheung King Shing)

CACC 22/2025

[2026] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 22 OF 2025

(ON APPEAL FROM HCCC NO 156 OF 2023)

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J U D G M E N T

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1.Following a trial before Woodcock J (“the judge”) and a jury in the High Court, the applicant was convicted, on 16 January 2025, of a charge of trafficking in dangerous drugs, namely 96.17 grammes of a solid containing 77.54 grammes of ketamine, 37.5 grammes of a crystalline solid containing 28.8 grammes of methamphetamine hydrochloride (“Ice”) and 7.09 grammes of a solid containing 5.82 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was sentenced, on 21 January 2025, to 8 years and 11 months’ imprisonment. By a Form XI Notice filed on 7 February 2025, he seeks leave to appeal against conviction only.

2.Having heard argument on 14 May 2026, I said I would reserve my decision and hand down my judgment in due course. This is my judgment.

The prosecution case

3.Pursuant to a police roadblock operation staged at about 9:30 pm on 28 September 2022, at 128, Tai Po Road in Sham Shui Po, Kowloon, the applicant’s vehicle XJ 6118 was waved down for enquiry by PC23315 (“PW1”). Since the vehicle did not appear to stop, PW1 shouted loudly at the applicant as he drove past, who then brought his vehicle to a halt.

4.When asked why he did not stop as directed, the applicant did not provide any direct answer and was accordingly considered to have been acting suspiciously. Upon a search of the vehicle, two black paper boxes were found in the glove box of the front passenger seat[1] and a grey cross-body bag on the left rear passenger seat[2].

5.Inside the two black paper boxes were a total of 11 transparent resealable plastic bags containing a total of 21.4 grammes of ketamine and 28.8 grammes of “Ice”[3]. Inside the grey cross-body bag were 3 transparent and green resealable plastic bags in each of which were found further resealable plastic bags, containing a total of 56.14 grammes of ketamine and 5.82 grammes of cocaine[4].

6.On being arrested and cautioned at the scene, the applicant claimed that the dangerous drugs were for his own consumption and asked for a chance[5]. On the following day, when he was interviewed by police officers, he alleged that his previous claim of the drugs being for his own consumption was randomly said in the chaos of the situation[6], and was not true. Instead, he said that he had collected the drugs in order to make deliveries for “the company” for reward.

7.According to undisputed forensic evidence, the applicant’s fingerprint was found on the outside right front door of XJ 6118[7]. Fingerprints were also found on the outside of the front offside door and on a plastic bottle found on the rear offside seat of XJ 6118 but with insufficient characteristics for search and identification purposes[8]. In addition, the steering wheel, gear lever and the button on the front glove compartment of XJ 6118 were examined for DNA but yielded no result[9]. Although the plastic bags containing the dangerous drugs were examined for DNA evidence, only the DNA relating to a person named Ng Ka Kin was found on Exhibit P9[10].

The defence case

8.The applicant elected to testify at in his defence. He said that the officers did not show him the drug exhibits seized from his vehicle until the video recorded interview on the following day, since when he realised that they had been placed in his car by his girlfriend[11] and did not, therefore, belong to him. He further said that when he was shown the contents of the post-recorded notebook and asked to sign on it, he told the police officers that the dangerous drugs were not his and he did not know anything about them[12]. As for his answers in the video recorded interview, he was instructed to memorise what to say before the video recording began[13]. He challenged the voluntariness and truthfulness of all his admissions, which were said to have been fabricated by the police.

9.As for his apparent hesitation in stopping as directed by the police, he said that the officer concerned was waiving his flashing baton backward and the gesture was not for him to stop[14]. He denied in evidence that he panicked, or was scared at the time or that he had deliberately disobeyed police instructions[15].

Summing-up

10.In respect of the applicant’s testimony in court that the dangerous drugs belonged to his girlfriend, the judge told the jury[16]:

“The defendant’s evidence was that PW3 wrote out a script in that room on a piece of paper. It was handed to PW4. PW4 handed it to the defendant, and he was to read it and memorise it and repeat it during the video recorded interview. He spent 15 minutes memorising it, and all of the questions in the video recorded interview came from that script. His evidence is the contents of that video recorded interview, those answers were not true. He was forced to make a statement when he was not fit to conduct an interview. He was framed by the police.

In cross-examination, he agreed that he did not tell the police at any stage that the dangerous drugs belonged to his girlfriend. He said he did not know until the video recorded interview the next day that the drugs were actually the items left behind by his girlfriend. He did not see any drug exhibits until the video recorded interview. Although you may recall, in answer to an earlier question from Mr Arthur, he said during the car search he saw PW1 find the two boxes and find dangerous drugs. Those two boxes were the boxes put in his glove compartment by his girlfriend. So you may think that at that stage he knew the drugs were put there by his girlfriend.

Members of the jury, you might find that this has been highlighted, you might consider what has been highlighted by the prosecution, that if dangerous drugs had been put in his vehicle by his girlfriend and the police found them, you may think or may consider the fact he could have told the police then at the stage that they were not his, that they were his girlfriend's or somebody else had put them there. But in answer to cross-examination, he said he did not tell the police at any stage dangerous drugs belonged to his girlfriend. The prosecution is highlighting that to suggest that they were not put there by his girlfriend and this was an explanation that he has made up later.”

11.For the purpose of one of the arguments in the appeal, it is relevant to set out what the judge said as to the applicant’s failure to stop his car immediately as directed by the police[17]:

“The prosecution’s case is that when he saw that roadblock, he panicked, he got scared, he disobeyed an obvious sign from a police officer to stop. He only stopped when that police officer shouted. He gave no good reason for not stopping, so he was pulled over and his car and his person were searched.”

12.In relation to DNA evidence (or a lack of it), the judge instructed the jury that[18]:

“The prosecution are not saying that the defendant owned the drugs, that he stored the drugs sometime earlier or that he packed the drugs into those little plastic bags for distribution. It is not inconvenient to the prosecution that there was evidence of DNA on the flaps of 29 plastic bags as suggested by Mr Arthur. It is not inconvenient.

...

You were told not to speculate but in fact you have been told to speculate as to why Ng was not prosecuted. It has been described as a mysterious decision. Mr Arthur has suggested today or has said today he wonders why the DNA evidence is not enough evidence to charge Ng. He has said that the decision not to prosecute Ng shows that something is going on here and it does not add up. I am directing you not to speculate.”

13.The judge also reminded the jury of the forensic evidence on how DNA evidence might or might not be left on a surface. She said[19]:

“You heard evidence from the chemist, Ms Yeung, yesterday morning. She explained to you that someone can touch a surface, but DNA is not always left on a surface. Or they may touch a surface but their DNA is not detectable on that surface. Her evidence which was not disputed was that you need or she would need a certain amount of DNA left on a surface to make a positive finding.

Her evidence was DNA is not always left on surfaces even if they are touched. It depended on various factors. …”

Grounds of appeal

14.Mr Bruce SC, with him Mr Man, for the applicant on this application but not at trial, has advanced essentially three grounds of appeal against conviction.

15.Ground 1(1) concerns the right of silence and criticises prosecuting counsel’s cross-examination of the applicant for his prior failure to mention his girlfriend’s involvement with the items found in the car. Mr Bruce went so far as to suggest that the judge should have forbidden cross-examination on the topic[20], or at least properly directed the jury to ignore what was wholly inappropriate cross-examination and not  engage in the impermissible line of reasoning that such evidence had been recently invented. Mr Bruce relied on the decision of the Court of Final Appeal in HKSAR v Chan Chu Leung[21] in support of this ground.

16.Ground 1(2) complains that, in relation to the applicant’s failure to stop his car as directed by PW1, the judge should have instructed the jury that the applicant had no obligation to make any response to the officer when asked why he did not immediately stop his car, which was consonant with his right of silence.

17.Ground 2 argues that the judge should have told the jury that, absent any DNA evidence relating to the applicant on the packages of drugs, there was a reasonable possibility that he was never in possession of the drugs or involved in the trafficking of the same. Such possibility was also consistent with his case that it was not him, but his girlfriend, who had placed the dangerous drugs in his vehicle. Further, although perhaps a side point, Mr Bruce criticised PW1, who stopped the applicant’s car, for giving opinion evidence that drivers of so-called “meal cars” think about whether to stop or not to stop when approaching police roadblocks, which evidence was then recapitulated to by the judge in her summing-up[22].

The respondent’s submissions

18.Ms Chan, for the respondent, submitted that the applicant never exercised his right of silence or should have been taken to have waived his right of silence by choosing to speak both after his arrest and caution and during the video recorded interview. As to why the drugs were in his possession, the applicant had provided, upon arrest and later in interview, two inconsistent versions, neither of which was consistent with his third version in court. In those circumstances, as the Court of Final Appeal had held in HKSAR v Lee Fuk Hing[23]:

“…if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross-examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused”.

This passage had been recited with approval by the Appeal Committee of the Court of Final Appeal in Li Siu Hing v HKSAR[24] and by the Court of Final Appeal in Chan Chu Leung[25].

19.Since one should not assume, prior to the verdict, that the jury would have found against the voluntariness of his earlier admissions, Ms Chan submitted there was no proper basis to disregard the first and second versions he gave and prevent cross-examination on the applicant’s failure to mention the third version concerning the role of his girlfriend. She contended that, in the present circumstances, it could not be reasonably argued that the prosecution’s stance, or the judge’s directions in the summing-up, had undermined the applicant’s right of silence.

20.Ms Chan further submitted that, in the passage quoted at [11] supra, the judge was merely putting the prosecution case at the outset of her introduction in the summing-up. The sentence that “he gave no good reason for not stopping” should not be looked at in isolation. In any event, having reminded the jury that the applicant denied failing to stop through nervousness, no further direction was necessary.

21.In respect of the DNA argument, Ms Chan maintained that the prosecution case was that the applicant was a courier, not a packager, of the dangerous drugs. There may be many explanations why someone else’s DNA was found on the packaging of the drugs and the applicant’s was not. The absence of DNA was a neutral factor. As for the reference to “meal car” in the summing-up, Ms Chan submitted that PW1 was merely explaining why he had found the applicant suspicious; and the judge was simply reciting his evidence.

Consideration

22.It is important to recognise that this case was not one in which the applicant had ever invoked the right of silence, either in express terms or by implication. On the prosecution case, the applicant had made admissions upon arrest that the drugs were for his own consumption, which were subsequently reduced into a police notebook; he then made admissions during a video recorded interview that he was actually trafficking in dangerous drugs (in the course of which he did not fail to answer a single question during a 40-minute interrogation); and on his own evidence, after being cautioned in Sham Shui Po Police Station, he denied knowledge and possession of the dangerous drugs by saying[26]:

“Well, the things are not mine and I don’t know anything about these.”

The applicant further stated, albeit very late in his evidence[27], that he had also told the officers about his girlfriend’s role, but the officers did not believe him. This was allegedly said in the car journey on the way to conduct a search of his home premises. Accordingly, at no stage did the applicant ever say he wished to say nothing or avail himself of his right of silence, and nor was that the prosecution or the defence case.

23.These facts exemplify an important difference from those cases where the defendant/appellant has exercised his right of silence or where there was no dispute that the appellant had in fact availed himself of the right of silence: for example, the cases of Lee Fuk Hing; HKSAR v Ata Asaf[28]; and Chan Chu Leung. As Fok PJ pointed out in the latter case[29]:

“First, it is important to note that, unlike cases to which reference will later be made, there is no issue in the present cases as to whether the appellant availed himself of his right of silence.”

Later, he said[30]:

“Since the appellant was unequivocally advised he was not obliged to say anything when he was arrested and cautioned and expressly availed himself of his right of silence upon being so cautioned, cases like Lam Sze Nga, which are concerned with cross-examination aimed at resolving a dispute as to whether that right had actually been exercised, are distinguishable.”

24.The reference to HKSAR v Lam Sze Nga illustrates this important distinction. The Court of Final Appeal in that case held[31]:

“26. The issue was squarely drawn. Whether or not she had, in effect, remained silent was, I am satisfied, a live issue for the decision of the jury. This was not the usual ‘right of silence’ case where it is common ground that the accused has remained silent. In such cases the issue is not whether the defendant remained silent but, rather, what the consequence is of his having done so.

27. It was, in the circumstances, quite proper for the judge to allow cross-examination of the respondent challenging her claim that she had, in effect, said nothing. This applies equally to questions directed towards her suggested failure to reveal her defence as it does to those directed towards her suggested failure to complain about coercion. Such cross-examination would properly assist the jury to determine whether she had, in fact, availed herself of the right of silence.”

25.When the appellant in Lam Sze Nga was retried, pursuant to the order of the Court of Final Appeal, she was reconvicted by a jury and in due course came back before the Court of Appeal in HKSAR v Lam Sze Nga[32]. The Court on that occasion observed[33]:

“52. The issue in our appeal concerns the cross-examination about the Applicant’s silence for the 4 months between incident and complaint regarding her defence that the drugs had been planted. If that was all the relevant evidence, then it could not be suggested that the Applicant had waived her right of silence and as this court is bound by Lee Fuk Hing, it would have to hold that the cross-examination concerning the Applicant’s silence during the 4 months before her complaint to the ICAC was inadmissible, even though she had given other reasons for maintaining her silence.

53. However, although the post-record and video interview were ruled not admissible, there remains the evidence that she had said after caution at the time of her arrest: ‘You people found [it] upon search. Caught red-handed. Nothing to say’. Now if the jury found in the prosecution’s favour on this piece of evidence, then that might be regarded as a waiver of her right of silence, in which case cross-examination about the complaint would be permitted. However the jury should also be directed that if they found in the Applicant’s favour (that is that she did not say those words), then they should then treat her as if she had maintained her right of silence, in which case adverse inferences could not be drawn from the delay in complaining, whether for the Guilt Use or the Credibility Use.”

26.Given that this was not a case where the applicant had invoked his right of silence at any stage from arrest to home search, I do not consider that the judge’s directions can reasonably be faulted. She instructed the jury as follows[34]:

“Now in deciding whether you can safely rely upon the admissions as suggested by the prosecution, you have to decide the following things.

First issue. Did the defendant in fact make the admissions? Now we hear him make admissions in the video recorded interview however where the post recorded statement is concerned, PW1 recorded down an admission he said the defendant made after caution in the police vehicle. The defendant says he did not make that admission in the police vehicle or at any time.

Now if you are not sure that he did make that admission you must ignore it. If you are not sure ignore it. And in this regard, I must direct you that if it is or maybe the case the defendant did not say anything when arrested and cautioned, it is the law that a person is entitled to say nothing when asked questions by the police about his or her alleged involvement in a crime. It would therefore be quite wrong if the defendant having decided to exercise his right of silence found that the exercise of that right was used against him. You must not do that. It is important that you bear in mind that the defendant’s silence cannot be used against him in any way at all, it cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.

Secondly, if you are sure that he did make that admission under caution in the police vehicle at the roadblock. And you know he made admissions in the video recorded interview, you need to decide whether they were or may have been made or given as a result of oppressive behaviour by the police, inducements or threats or something said and done to him. If you conclude that those admissions were or may have been obtained by police officers as a result of oppression, inducement or threats then you must ignore disregard those admissions.

In this case the defendant alleges he was threatened, he was induced by a hope of bail, induced by hope of making phone calls, threatened with more charges if he did not admit the offence, as well as forced to repeat what he has been coached to say before the video recorded interview. If that is true or may be true you must disregard the admissions altogether and you must treat the defendant as not having said anything in answer to the police allegation, and as I have earlier explained that is not something that can be used against the defendant in any way.

Lastly, finally if you are sure that he did make those admissions and that those admissions were not obtained as a result of oppressive behaviour or inducements or threats or something said or done to the defendant which may render them unreliable, you must then go on to consider whether when he said these things they were true.”

27.The jury were correctly told, therefore, that if they thought the applicant had not given the incriminating answer upon arrest, or if they thought the answers in the video recorded interview had been improperly obtained, they must regard him as having availed himself of the right of silence and “treat the defendant as not having said anything in answer to the police allegation, and as I have earlier explained that is not something that can be used against the defendant in any way” (my emphasis).

28.Given the facts of this case and the applicant’s own evidence, I do not regard Ground 1(1) as a reasonably arguable ground of appeal.

29.As for what is said to be the related point of the judge commenting that the applicant gave no reason for not stopping his car when requested to do so by a police office (Ground 1(2)), I agree with Ms Chan that the judge was not actually making any comment at all. Rather she was simply reciting the prosecution’s position at the very outset of her summing-up to explain why they had acted as they did[35]. Mr Bruce wisely retreated from the suggestion that the judge should have given a flight direction, which would have been wholly inappropriate on the facts of this case.

30.But even assuming the applicant was under suspicion before being asked why he had not stopped the car, and that he had the right not to answer any police enquiry, I cannot see why the judge’s general direction as to the right of silence would not have remedied what was, with respect, a very small point indeed. In any event, the judge addressed the applicant’s hesitation in stopping his car (rather than his failure to give a reason for not stopping his car) at the roadblock in a perfectly sensible way when explaining the concept of inferences[36]:

“The prosecution are suggesting he knew there were drugs in the car, which was why he hesitated at the roadblock and did not follow the police officer’s directions to stop. You may think that it was a reasonable suspicion on the part of the officer to then suspect dangerous drugs or suspect the defendant because he did not follow. Sorry, he did not stop.

The prosecution is suggesting that he did not stop because he was scared that the police may search him, search his car and find something, find drugs.

The prosecution is also suggesting why would someone, even if it is his girlfriend, put valuable drugs in the car without telling the defendant and leaving it in plain sight or easily accessible in the glove compartment box. It makes no sense that, you may think members of jury, it makes no sense that anyone or his girlfriend would leave them in his vehicle without his knowledge and come back later to get them because there is a risk that somebody else gets in the car, finds the drugs or the defendant finds the drugs, takes the drugs, throws them away or goes to the police.

The defence are saying there is other inferences to be drawn. If you find on facts proved that he did not hesitate to stop, the defendant says, ‘I did not hesitate to stop because I was not directed to stop’. Therefore, he did not act suspiciously. He did not act suspiciously because he had nothing to be scared of or panic about because he did not know there were drugs in the car.”

31.I do not consider that Ground 1(2) is reasonably arguable.

32.As for the complaint about the non-direction in respect of the DNA evidence (Ground 2), it was the prosecution’s case, as Ms Chan made clear, that the applicant was, as he admitted in his video recorded interview, a courier of dangerous drugs on behalf of someone else (“the company”), and not involved in the packaging of the dangerous drugs, nor was he the owner of the dangerous drugs. The count on the indictment averred that he had trafficked “together with other person(s) unknown”, so one would inevitably expect different people to have played different roles in what was a joint enterprise. The judge reminded the jury of the DNA evidence and the fact that the DNA of an identifiable person other than the applicant was found on one of the packets. It could not have escaped them that the applicant’s DNA was not on the drugs or the packaging concerned and the inferences they might or might not draw from that fact. I do not consider this matter provides a reasonably arguable ground of appeal.

33.Accordingly, this application must be refused. The applicant is reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time spent in custody pending the determination of the appeal if it were to conclude that there was no justification for renewing the application.

Ms Denise Chan SADPP, of the Department of Justice, for the Respondent

Mr Andrew Bruce SC and Mr Kelvin Man, instructed by Kenneth Chau & Associates, for the Applicant