HKSAR v. Lai Hing Hong

CACC000209/2003

CACC209/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.209 OF 2003

(ON APPEAL FROM HCCC NO.268 OF 2002)

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Coram : Hon Ma CJHC, Pang and Hartmann JJ in Court

Date of Hearing : 7 April 2004

Date of Judgment : 7 April 2004

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J U D G M E N T

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Hon Pang J (giving the judgment of the Court) :

1.After his trial before Mrs Justice Bokhary sitting with a jury, the applicant Lai Hing Hong was convicted of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) of the Dangerous Drugs Ordinance. He was sentenced to 22 years' imprisonment. He now applies for leave to appeal against his conviction.

2.The prosecution case against the applicant was that shortly after 5 p.m. on 27 April 2002, a Chinese male surnamed Hui was observed by the police to have alighted from a private car with registration no.FR5767. This male Hui then boarded a goods vehicle with registration no.KA185. The goods vehicle was seen being driven to the roundabout in Hang Kin Street in the Ma On Shan area. Hui was then seen alighting from the goods vehicle carrying a rucksack and boarded the private car FR5767. The police officers who had been in covert observation immediately intercepted Hui who was at the driver's seat of the private car. A search of the rucksack revealed that it contained a brown paper bag with four lots of suspected dangerous drugs. Beneath the brown paper bag was a pink plastic bag containing another three lots of tablets.

3.In the meantime, after leaving Hang Kin Street the goods vehicle KA185 proceeded towards the Clearance Waiting Area at the Lok Ma Chau Checkpoint. While queuing to be processed the police intercepted the goods vehicle and the applicant was found to be the driver. A sum of HK$10,000 cash was found next to the driver's seat and was seized by the police. The applicant was arrested and cautioned by the police. While still at the Clearance Waiting Area in Lok Ma Chau Checkpoint, the police officer who arrested the applicant made a post-record of what the applicant said in response to questions put to him by the police. Subsequent examination of the suspected drugs revealed that the contents of the brown paper bag were 3.63 kilogrammes of "ice". The 600 tablets contained 57.79 grammes of a substance which is commonly referred to as "ecstasy". The quantity of ice had a retail value of HK$1,220,000 and the Ecstasy's retail value was between HK$36,000 to HK$60,000.

4.On the following day the applicant was interviewed by the police under caution in the Police Headquarters. The interview was recorded on video.

5.At the trial the applicant objected to the production of the post-record and of the subsequent video interview. The judge conducted a voir dire at the end of which she ruled both the post-record and the video interview together with the certified English translations admissible as evidence.

6.The applicant elected to give evidence at the trial. He denied having any knowledge of existence of danger drugs in the rucksack. His account of the incident was that he had earlier arranged to meet the Chinese male Hui nicknamed "Ah Tak" in the afternoon of 27 April to discuss business opportunities with him. He had met Hui earlier in the Shatin area where they had discussions inside his goods vehicle. After the discussions Hui alighted from his goods vehicle. Later Hui telephoned to tell him that he had left his rucksack behind. That was the first time, according to the applicant, that he became aware that there was a rucksack in his vehicle. He had no idea as to what was inside the rucksack. Over the telephone he arranged to meet with Hui again so that Hui can pick up the rucksack. This was how he came to meet Hui for the second time in the afternoon when Hui boarded his vehicle again to pick up the rucksack he had left behind earlier.

7.As regards the admissions contained in the post-record the applicant's case was that he never made those admissions and what was recorded in the police notebook was fabricated by the police. He came to sign on the post-record only as result of serious police impropriety.

8.The Chinese male Hui, although referred to in the indictment as having jointly committed the offence with the applicant, was not a defendant at the applicant's trial nor was he called to give evidence as a witness.

9.Mr Chan for the applicant, who did not appear in the court below, advanced a total of six grounds of appeal. Ground 1 being the main ground criticises the learned trial judge for having :

"... erroneously withdrawn from the jury the possibility that some of the drugs might have been inside the rucksack at the time when it was collected from the goods vehicle KA185 by Hui, with the rest of the drugs being placed inside the rucksack only after Hui had returned to the car FR5767."

Mr Chan relies on the following passage in R. v. Kan Chik Tung [1963] HKLR 721 at p.731 :

" As regards the facts, it has been said over and over again that the judge must put the defence adequately to the jury. It is not the duty of a trial judge to go through all the evidence for the prosecution and the defence and repeat it to them verbatim. Juries are not assisted by a summing-up of this kind. It is the duty of the judge to assist the jury to address their minds to the real issues of fact arising on the charges before them and the main evidence which has been placed before them in relation to those charges and the accused's defences in regard to them. He may express his own views on the facts provided he makes it clear that the jury are free to disregard any such expression of view point and provided he leaves the jury in no doubt that they are the sole judges of fact." (emphasis added)

and also the passage in R. v. Marr (1990) 90 Cr.App.R 154 at 156 :

"... It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties." (emphasis added)

The basis of counsel's contentions appeared to have arisen when defence counsel cross-examined one of the police officers who witnessed the incident by suggesting to the officer that he could not see if Hui, having collected the rucksack from the applicant, had unzipped the rucksack and placed various items inside it. The evidence of the officer was that he believed Hui did not have time to do anything of that sort as suggested. The admitted facts state in paragraph 2 that the response of the police officers was immediate in intercepting Hui in his vehicle.

10.In the light of the above evidence Mr Chan nevertheless suggested that this raises the distinct possibility that at least some, if not all, of the drugs seized by the police could have been placed inside the rucksack after Hui had retrieved the otherwise empty rucksack from the applicant. Had this been the case, it was said, the applicant could not be guilty of the offence as he was never in possession of the drugs in question. With great respect to counsel for the applicant, this scenario cannot be examined in isolation. The proper approach must be that any such contention must be scrutinized in the light of all the evidence of this case. One aspect of the evidence was this : in cross-examination the police officer said he believed Hui did not have time to unzip the rucksack, place the drugs inside the sack and then zip it back again. One must not lose sight of the contents of the post-recorded statement which the applicant was recorded to have said :

"Answer :	His name is Ah Tak. It was he who gave me a bag of ice this morning at a car park at Haung Gang Check Point on the mainland and asked me to deliver it to Hong Kong.
Question :	What happened next?
Answer :	I then delivered it to Methodist Primary School and returned the bag of ice to Ah Tak. He then gave me ten thousand dollars.
Question :	Who is Ah Tak?
Answer :	He was the driver driving FR5767.
Question :	Well, where are the ten thousands dollars?
Answer :	Next to the driver seat on board (my) vehicle."

11.The above answers are consistent with the admitted facts in that a sum of $10,000 in cash was recovered from the applicant's vehicle. There is also the undisputed record of the goods vehicle having entered Hong Kong by way of the Lok Ma Chau boarder crossing point at about 1:32 p.m. on the same day of the applicant's arrest. To have pursued the theory or possibility as suggested by Mr Chan would mean that the applicant was given an empty rucksack by Ah Tak (Mr Hui) in China. He was rewarded for bringing an empty rucksack to Hong Kong to Ah Tak in the not insubstantial sum of $10,000. This, in our view, flies in the face of common sense. In returning a verdict of guilty, the jury must have accepted the evidence of the police officer and relied on the contents of the post-record.

12.The learned judge had this to say in her summing-up on this particular issue :

" When cross-examined by defence counsel on the matter, one of the police officers who witnessed the incident agreed with defence counsel's suggestion that he could not see if Hui had unzipped the rucksack and put things into the rucksack, but that he believed that Hui did not have the time to do anything of the sort. You may also, as persons of common sense, ask yourselves what possible reason Hui would have for going to the trouble of arranging a meeting with the accused just for the purpose of collecting a rucksack so that he could then put a million dollars worth of dangerous drugs in it. You are entitled to feel sure - it is a matter for you - that the dangerous drugs were in the rucksack all the time. ..."

In the above passage the learned judged stressed in no uncertain terms that it is very much a matter open to the jury, having reminded them of the evidence of the police officer, to find whether the dangerous drugs were inside the rucksack before it was handed over to Hui. With respect to counsel, this issue was never withdrawn from the jury. The jury was reminded that it was open to them to accept or to reject the evidence of the police officer on the issue whether Hui had placed the dangerous drugs in question inside the rucksack after he had collected the empty rucksack from the applicant.

13.One other point which would have been apparent to the jury was the fact that according to the applicant, Hui telephoned him to alert him of the fact that he had left his rucksack in the goods vehicle. They then arranged to have the rucksack returned to Hui at the spot where their activities were observed by the police. One cannot help but ask this question : if it simply involved handing over the rucksack back to Hui empty or otherwise, what then was the reason for Hui to board the goods vehicle and be driven around when common sense dictates that the applicant could have slowed down the vehicle and handed the rucksack to Hui through the window of the driver's seat.

14.The law dictates that every summing-up must be fair and balanced with all the relevant issues addressed. Having said that, it is never the duty of a judge to explain to the jury theorized scenarios bordering on the realms of speculation or on mere conjectures dressed up as possible defences which is the product of imagination plus perhaps the benefit of hindsight. The criticism levelled against trial judge is unfounded. We see no merit in the first ground of appeal.

15.Grounds 2 to 5 are directed at the trial judge's approach in dealing with drawing of inferences based on the evidence. It is against the following passage that the criticisms are advanced :

" On the basis of the evidence and the Admitted Facts, you would be entitled to conclude - it is a matter for you - as follows. The only reasonable inference is that there was a prearranged meeting between the accused in his goods vehicle and Hui in his private car for the purpose of the accused's delivery to Hui of the bag containing the dangerous drugs the subject-matter of the count. That having regard to the value of those dangerous drugs, over $1 million retail, the only reasonable inference is that this delivery was made in the course of drug dealing and constituted trafficking in those dangerous drugs by the accused and Hui.

As to whether the accused was a knowing courier of those dangerous drugs, you, as persons with common sense, are entitled to ask yourself this question. Is it at all realistic to think that this amount of dangerous drugs, worth over $1 million retail, would be brought along to a legitimate business discussion and accidentally or otherwise left behind afterwards? So you are entitled, if you see fit, to convict, even leaving aside any admission or confession by the accused."

16.Counsel submits that by using the phrase "you are entitled" the jury was given the impression that they must draw inferences on the evidence before them. It is urged upon this court that as a result of this, the jury was given an unbalanced view of the evidence and of the admitted facts. This could not have been, it was suggested, remedied by the repeated reminder to the jury that it is very much a matter for the jury to make up their own mind. The verdict is hence rendered unsafe and unsatisfactory.

17.Having examined the summing-up as a whole, we are of the view that the trial judge's summing-up was balanced, fair and comprehensive with all the salient issues addressed. She reminded the jury of the different possible approaches to the evidence and they have been repeatedly reminded that they have to use their common sense. Nowhere in the summing-up did the trial judge imposed her views on the jury or invited them to adopt any particular views unfavourable to the applicant.

18.For the reasons given the application for leave to appeal against conviction is dismissed.

Representation:

Mr Vincent Wong, SGC of Department of Justice, for the Respondent

Mr Wilson Chan, instructed by Director of Legal Aid, for the Applicant