HKSAR v. Gvangsanit Wanna and Another

DCCC 637/2025

[2026] HKDC 843

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 637 OF 2025

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REASONS FOR VERDICT

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1.The two defendants were originally only charged with one joint charge of trafficking in 10.03 kilogrammes of herbal cannabis on 23 November 2024 when they were at the Customs Arrival Hall of the Hong Kong International Airport. This is Charge 1. The defendants pleaded not guilty to the charge.

2.At the request of the defence, two alternative counts were added.  These are charges 2 and 3.  Charge 2 alleges that the 1^st defendant, whom I shall call D1 from now on, trafficked in 5.01 kilogrammes of herbal cannabis at the same time and place.  Charge 3 charges the 2^nd defendant, whom I shall call D2, of trafficking in 5.02 kilogrammes of herbal cannabis again at the same time and place.

3.The cannabis referred to in each of these alternative charges being the cannabis found in the defendants’ own suitcase carried at the time by the defendants themselves. 

4.The two defendants each pleaded guilty to the alternative charge. But their pleas were not accepted by the prosecution, and hence the trial for Charge 1.

The prosecution’s case

5.Now, to put it simply, it is the prosecution’s case that on 23 November 2024, the two defendants arrived at the Hong Kong International Airport from Thailand on the same flight.  They each had a suitcase in which a little over 5 kilogrammes of herbal cannabis were stored.  The drugs were found by customs officers when these defendants were taken to the Customs Arrival Hall for checking.

6.The prosecution said that the two defendants were acting in concert as a joint enterprise or, alternatively, in joint possession of the drugs found in their suitcases.

The evidence

7.Now, the whole of the prosecution’s evidence is, in effect, contained in two sets of Admitted Facts, namely, Exhibit P1A and P10.

8.The more pertinent parts say as follows:

“2. At around 1.40 pm on 23 November 2024, A/CCO Cheong Wai-meng (“PW1”)  intercepted both defendants at the Green Channel at Arrival Hall B, Hong Kong International Airport. D1 was holding a white check-in suitcase, whereas D2 was holding a pink check-in suitcase.

3. Thereafter, CO17402 (“PW2”)  led D1 to S6 Baggage Checking Counter, while CO16185 (“PW3”), led D2 to S5 Baggage Checking Counter.

4. At around 1:45 pm on the same day, PW2 found that the white suitcase carried by D1 had a check-in baggage tag under her surname. Upon PW2’s request, D1 tried to open the suitcase with the passcode, but to no avail. PW2 again requested D1 to open the suitcase, to which D1 shook her head. PW2 then opened the suitcase with the passcode ‘000’.

5. Inside the suitcase, PW2 found 5 vacuum storage bags containing 2 pieces of clothing each. PW2 opened one of the vacuum storage bags and found a black shirt containing a grey plastic bag, which contained a vacuum storage bag containing suspected cannabis buds. PW2 conducted a narcotic test on the suspected cannabis buds which yielded a positive result for cannabis.

6. At around 1:55 pm, PW2 arrested D1 for ‘Trafficking in Dangerous Drugs’. PW2 cautioned D1 in English, to which D1 replied in a different language. D1 remained silent during a cautioned VRI conducted later on the same day in the presence of a Thai interpreter.

7. 10 vacuum storage bags containing 5.01 kilogrammes of cannabis in herbal form (Exhibit P2), were seized from D1’s suitcase. D1’s Thai passport (Exhibit P3), her boarding pass for flight CX700, seat number 71D (Exhibit P3A), an envelope containing HK$4,600 (Exhibit P3B), and then a bag containing (a)  D1’s baggage tag, (b)  receipt, (c)  itinerary, and (d)  D1’s e-ticket (Exhibit P3C), and an OPPO phone (Exhibit P4), were also seized.

8. After leading D2 to S5 Baggage Checking Counter, PW3 pointed to the suitcases carried by D2 and asked if those were her luggage, to which D2 replied, ‘Yes’. The pink suitcase carried by D2 had a check-in baggage tag under her surname. Upon PW3’s request, D2 tried to open the suitcase with the passcode twice but to no avail. D2 kept shaking her head. PW3 then opened the suitcase with the passcode ‘000’.

9. Inside the suitcase, PW3 found 5 vacuum storage bags containing 2 pieces of clothing each. PW3 opened one of the vacuum storage bags and found a black shirt wrapped around the grey plastic bag which contained a vacuum storage bag containing suspected cannabis buds. PW3 conducted a narcotic test on the suspected cannabis buds which yielded a positive result for cannabis.

10. At around 1:55 pm on the same day, PW3 arrested D2 for ‘Trafficking in Dangerous Drugs’. D2 did not make any admission under caution, and she remained silent during a cautioned VRI conducted later on the same day in the presence of a Thai interpreter.

11. 10 vacuum storage bags containing 5.02 kilogrammes of cannabis in herbal form (Exhibit P5), were seized from D2’s suitcase. D2’s Thai passport (Exhibit P6), her boarding pass for flight CX700, seat number 71E (Exhibit P6A), and an envelope containing HK$4,600 (Exhibit P6B), a bag containing (a)  D2’s baggage tag, (b)  itinerary, and (c)  D2’s e-ticket, (Exhibit P6C), and an OPPO phone (Exhibit P7), were also seized.

12. The Government Chemist later confirmed that the dangerous drugs seized from D1’s suitcase contained 5.01 kilogrammes of cannabis in herbal form, while the dangerous drugs seized from D2’s suitcase contained 5.02 kilogrammes of cannabis in herbal form.

13. Immigration movement check confirmed that the two defendants arrived in Hong Kong at 1:13 pm and 1:12 pm on 23 November 2024, respectively.

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17. PW9 calculated the street value of 10.03 kilogrammes of cannabis in herbal form at HK$1,855,550.”

9.By Exhibit P10, it is further admitted by the parties that at around 10:19 pm on the same day, PW4 pointed to D2 and asked D1, through the interpreter, ‘Do you know the woman you just saw?’  And D1 stated that, ‘I know her when joined the tour’.  PW4 asked D1, ‘What’s her name?’  And D1 answered, ‘Don’t know her name so.’

10.At the defence request, two customs officers were tendered for cross-examination.  The first officer is PW1, A/CCO Cheong.  The only thing he was asked to confirm was that at the time when D1 and D2 were intercepted by him, there were 18 other Thais walking together with them.

11.The other witness tendered was Customs Inspector Kwong.  He was the officer in charge of the subsequent investigation of the case.  He confirmed that at the time when the two defendants were arrested and cautioned, they were only arrested for trafficking in the cannabis found in their own respective suitcases, namely, 5 kilogrammes of cannabis each.

12.The inspector further confirmed that when he later conducted a VRI with each of the two defendants, he also only cautioned them in relation to the cannabis found in their own suitcases.  In addition, the inspector was asked by counsel for D1 to confirm that in a TIP screening form, whatever that may mean, D1 was described there as a “drug mule”.

13.Lastly, the inspector agreed that there is no forensic or digital evidence that links D1 with the drugs found in D2’s suitcase.  And he further confirmed, also at the defendants’ request, that the present case is not an undercover operation conducted with the Thai authorities against a syndicated drug activity.

14.Now, as both defendants had chosen not to testify, nor to call any witness, after they were found by the court to have a case to answer, the above is all the evidence in the present case.

The law

15.Before I shall deal with the facts, I should say a word about the law here first.  Except for one point which was raised by Mr Pannu on behalf of D1, the law on the concept of joint enterprise and that of joint possession is quite clear. 

16.As stated by the Court of Final Appeal in their reasons for determination in the case of HKSAR v Wong Chun Yau, FAMC 25/2021 [2021] HKCFA 33:

“7. Liability for joint possession is conceptually different from liability for joint enterprise. For joint possession, the prosecution needed to prove that the applicant was in joint possession of the packet with Mok. But it did not need to prove that the applicant had agreed to participate in a joint enterprise with Mok that night and that he had played his part in it.

In contrast, for joint enterprise, it would not matter if the applicant had not been in possession at all. If the prosecution proved that he had agreed to participate in a joint enterprise with Mok that night, the applicant would be liable for the possession of the packet by Mok as an act in furtherance of the such joint enterprise, see paragraphs 40 to 42 in the judgment of HKSAR v Chan Kam Shing.”

17.In paragraph 11 of the same Reasons for Determination, the Court of Final Appeal added:

“...mere presence in the vicinity of the packet and knowledge of its content were not enough to constitute possession and that there had to be physical custody with the intention to exercise control.”

18.In the case of HKSAR v Chan Kam Shing (2016)  19 HKCFAR 640, when discussing the development of the doctrine of joint enterprise, Ribeiro PJ referred, with approval, to two Australian cases:

“35. In McAuliffe v The Queen, the High Court of Australia explained that the doctrine of joint criminal enterprise provides an additional means of establishing complicity alongside the rules of accessorial liability:

‘...the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.’

36. And In Clayton v The Queen, …the High Court highlighted the different factual bases upon which the respective doctrines rest:

‘...liability as an aider and abettor is grounded in the secondary party’s contribution to another’s crime. By contrast, in joint enterprise cases, the wrong lies in the mutual embarkation on a crime, and the participants are liable for what they foresee as the possible results of that venture.’”

19.The point which Mr Pannu took up was that, according to his reading of the judgment of the Supreme Court of Ireland in the case of The People (DPP)  v DT [2025] IESC 25, the prosecution in the present case would have to prove both knowledge and control of the drugs found in the other defendant’s suitcase, even if the prosecution is relying on the doctrine of joint enterprise, as opposed to the doctrine of joint possession.

20.As I have indicated to Mr Pannu in the discussion during the trial, I do not agree with his reading of that judgement.  In my view, one must bear in mind that in the case of DT, one of the points the court was concerned with was the interpretation of the word “possession” used in section 4(3)  of the Criminal Code of Ireland.

21.Bearing that in mind, one can then see easily why the Supreme Court of Ireland expressed the view that, for there to be an enterprise of possession or encouragement, the prosecution would have to prove control: see for example paragraph 40 of the judgment. What must be noted is that although the court there used repeatedly the term, “Enterprise of possession”, it was in effect used in relation to the concept of joint possession, not joint enterprise.

Factual Findings

22.With the law set out as herein above, let me now return to the facts of the present case.  Based on what has been set out in the Admitted Facts and the evidence of PW1, there can be no question, in my view, that:

(a)  the two defendants knew each other before arriving in Hong Kong;

(b)  they joined the same tour for their trip to Hong Kong;

(c)  they were sitting next to each other on the plane when they were flying out from Thailand to Hong Kong;

(d)  they each had a suitcase which were, except for the colour, identical to each other. They were identical not only in terms of appearance, but more importantly for what is inside: see paragraphs 7 and 11 of the Admitted Facts and photos.

23.It has to be noted that not only were the two defendants each having 5 kilogrammes of cannabis – 5.01 kilogrammes in the case of D1, and 5.02 kilogrammes in the case of D2 – but that the cannabis was packed in exactly the same way in the two suitcases. 

24.Each defendant had an envelope containing exactly HK$4,600 which were in the same denomination, and each also had the same itinerary, a similar e-ticket and an OPPO cell phone.

25.Furthermore, when they were at the respective baggage checking counter, they responded in exactly the same way.  When asked by the officer to do so, each tried to open the suitcase with the password, but to no avail, and when the officer asked for a second time, each defendant shook their head.  But after the officers took over the suitcases, it was found that both of them could be opened with a password of ‘000’.

26.On the evidence as discussed, the first question for the court is this: can the court infer that the two defendants were in the mutual embarkation on a crime, to borrow the phrase from the Australian High Court in the case of Clayton? Had the defendants, as per McAuliffe, reached an understanding or arrangement amounting to an agreement between them that they will commit a crime?

27.In my view, the answer to that question must be Yes, of course the court can draw such an inference.  That is no doubt why the defendants accepted that there was a case to answer.

28.Having gone past that, the next question is whether that is the only reasonable inference to be drawn in the circumstances.  And, that of course is a jury question.  After thinking long and hard about it with my juror’s hat on, my conclusion is again, Yes, in the absence of evidence to the contrary, that is the only reasonable inference to be drawn in the circumstances.

29.As pointed out by the High Court of Australia in McAuliffe:

“The understanding or arrangement need not be express and may be inferred from all the circumstances.”

30.In the present case, the two defendants accepted that they were actually in the course of importing cannabis from Thailand to Hong Kong, albeit that they claimed they were only importing the cannabis found in their own suitcases.

31.However, from the way the cannabis was packed, the way each defendant was kitted out, and the way they responded after they were brought to the customs baggage checking counter, I am of the view that, in the absence of some convincing evidence to the contrary, the only reasonable inference the court can draw in the circumstances is that the defendants were in mutual embarkation of a joint enterprise with the common purpose of bringing into Hong Kong the cannabis in their two suitcases together.

32.The suggestion by defence counsel that the defendants may have simply bumped into each other either when they joined the tour group or when they were at the airport in Thailand or on the plane is, in my view, too much of a coincidence.

33.In arriving at this conclusion, I have not overlooked the fact that both defendants have a clear record.  However, given that they had each admitted to be trafficking in each case 5 kilogrammes of dangerous drugs into Hong Kong, the fact that they have a clear record can only be of limited service to them.

Conclusion

34.By reason of the matters aforesaid, I am satisfied so that I am sure that the prosecution has proved their case on Charge 1 beyond all reasonable doubt, and the two defendants are accordingly convicted of that charge. 

35.In light of the conclusion I have arrived at on Charge 1, there is no need for the court to return any verdict on Charges 2 and 3.