HKSAR v. Ng Ning Fu

CACC000418/1998

CACC418/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 418 OF 1998

(ON APPEAL FROM HCCC434 OF 1997)

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Coram: Hon. Mayo, J.A., Stuart-Moore, J.A. & Keith, J.

Date of Hearing: 6 May 1999

Date of Delivery of Judgment: 18 May 1999

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 17th July 1998, following a trial before V. Bokhary J. and a jury, the Applicant (D1 at trial) was convicted of trafficking in a high purity mixture containing just over 1.14 kgs. of heroin hydrochloride. He was sentenced to 22 years' imprisonment. He now seeks leave to appeal against conviction.

2. The evidence brought by the prosecution in support of their case against the Applicant was circumstantial. The drugs were found on 21st May 1997 in Room 4, Flat C, 1st floor, Chung Nam Mansion, 88 Ma Tau Chung Road, Tokwawan. On that day, the Applicant was seen going into the building where Room 4 was situated on no less than three occasions between 5.10 p.m. and 10.20 p.m. He needed to manipulate the security code controlling the front entrance gate in order to go inside the building. Just after the third sighting, police arrested the Applicant on the staircase at 1st floor level.

3. The Applicant was wearing a pair of 'Masdar' shoes with the number 2511:7 inscribed on them. In the search for drugs in Room 4, a shoe-box bearing the same brand name and number was found.

4. The drugs, worth $795,692 in terms of their retail price, were found in several plastic bags. Three plastic bags, containing a total of 20.49 grammes of the heroin, were found in a plastic box. The Applicant's thumbprint was found on this box.

5. The defence which the Applicant put forward at trial was that he had no connection with Room 4 and had never been inside it. He said that he had only once been to the building and that he was there for an innocent purpose. This, he explained, was because he had seen scaffolding on the outside and he went in to see if he could find any work for his company. He said that he got inside by following someone else through the entrance. As to the thumbprint on the box which contained some of the packets of drugs, he said police had told him to pick up the box when he was shown it.

6. There are two grounds of appeal. Firstly, Mr. Chan Siu-ming, on behalf of the Applicant, has submitted that while the trial judge directed the jury that they were not to draw any inference against the Applicant unless this was the only reasonable inference open to them, she misdirected the jury that, if the Applicant's thumbprint was found on the plastic box in circumstances which were not as he described in his evidence, three inferences could be drawn from this. These were:

(a) that he handled the drugs in question;

(b) that all the drugs in Room 4 formed one single lot; and

(c) that the Applicant had knowledge of the drugs in the course of handling them.

7. Secondly, it is submitted that the judge usurped the jury's function by directing them on the inferences listed in the first ground and misdirected them as to what inferences they should draw.

8. Clearly these two grounds are closely linked and we propose to deal with them together.

9. It is important to look at precisely how the trial judge dealt in her summing up with inferences. At page 3S she said:

"As to the drawing of inferences, I give you this direction. You are entitled to draw inferences. But you are not to draw any inference against an accused unless it is the only reasonable inference. If an inference against the accused is based on facts of which you are sure, and you are sure that it is the only reasonable inference, then you may draw that inference. Thinking that a fact is the only reasonable inference is the same as being satisfied beyond reasonable doubt of that fact. In other words, being sure of that fact."

10. The judge then went on to tell the jury that they were not to speculate and a little later, having dealt with other topics, the judge gave the jury the definition of trafficking in dangerous drugs. Then, in narrower terms, tailored to the circumstances of this particular case, she went on to say at page 7G:

"If a person peddles dangerous drugs, he is trafficking in them. Likewise a person trafficks in a dangerous drug if, knowing that they are dangerous drugs, he transports or stores them for someone else who is going to peddle them."

11. The judge then turned to the nature of the case against the Applicant and his co-defendant (D2) at page 7S in these terms:

"It is of course no part of the prosecution's case that the only persons involved in trafficking in this extremely large and valuable lot of dangerous drugs were these two accused. The question for you is whether each accused was so involved, whoever else may or may not have been.

Counsel for the 1st accused said to you that there is no 'direct' evidence against his client. That is true. And, I should add, it is true of the 2nd accused too. Nobody has, for example, come along and said that he saw either accused hand over a bag of dangerous drugs to someone in exchange for a pile of banknotes.

In the present case, the prosecution's evidence against each accused is 'circumstantial' rather than direct.

The fact that evidence is circumstantial does not mean that you should disregard it or to treat it as inconclusive. Some circumstantial evidence can be as powerful or more powerful than direct evidence and, in an appropriate case, be sufficient to prove a case beyond reasonable doubt against an accused. For example, fingerprints or DNA print evidence may be sufficient to do that where the evidence of an eye-witness, whose identification is uncertain, may not be.

Members of the jury, the evidence by which the prosecution seeks to prove beyond reasonable doubt each accused's guilt is evidence on the following matters:

1. Relevant to both accused, there is the prosecution's evidence of the layout of the premises, consisting of a large room plus a toilet, in which the dangerous drugs the subject-matter of the count were found and of where, in that large room, those drugs were found. These premises are Room 4 of Flat C on the 1st Floor of Chung Nam Mansion, No.88, Ma Tau Chung Road in Tokwawan. I'll refer to the room as 'Room 4'.

2. Relevant to the 1st accused alone, there is the prosecution's evidence pertaining to his connection with Room 4, quite apart from evidence of his fingerprint being found on one item found inside Room 4. Members of the jury, as far as the 2nd accused is concerned, I direct you that apart from evidence of his fingerprints being found on items inside Room 4, there is no evidence of any connection of his with that room ...."

12. The judge at this point dealt with one matter which is of no concern in this application because it related to D2. This was a direction that the jury should not take into account one other piece of evidence against D2 which might have been seen to be a further connecting link between him and the room. In the event, the jury acquitted D2.

13. The judge then carried on her summing up by dealing with the following points:

"....... 3. Relevant to both accused, there is the prosecution's evidence pertaining to how those drugs were packaged.

4. Relevant to both accused, there is the prosecution's evidence of the value of those drugs.

5. Relevant to the 1st accused alone, there is the prosecution's fingerprint evidence pertaining to him."

14. The two most important matters for present purposes are points 2 and 5 in the judge's list of circumstantial factors to be considered by the jury, as these were not merely indicative of someone trafficking in drugs at Room 4 but, more importantly, that the Applicant may have been one of those to do so. These were clearly matters for the jury to weigh and assess.

15. The trial judge continued by reminding the jury of the three visits which the Applicant had allegedly been seen to make to Chung Nam Mansion, reminding them also that on each occasion he had let himself into the building through a security gate at the entrance.

16. After directing the jury as to their approach to evidence of identification, the judge went on to remind the jury how, having been arrested on the first floor of the building on a staircase at the same level as Room 4 where the drugs were found, it was discovered that the Applicant's shoes matched the description on the shoe-box found in that room. In connection with the arrest, the trial judge additionally reminded the jury that the Applicant had struggled and tried to get away from the police.

17. On these last two aspects of the case, Mr. Saw, S.C., for the Respondent, has very fairly drawn to our attention two matters. Firstly, he points out that the directions which were given as to "flight" were not wholly satisfactory in the light of the judgment subsequently given in HKSAR v Mo Shiu-shing, (1999) 1 HKC 43. Be that as it may, we take the view that so far as the directions which were given are concerned, it was made abundantly plain to the jury that evidence of this kind in itself could never in any event be evidence that the Applicant was guilty. On this aspect, as the judge reminded the jury, the Applicant denied struggling in order to escape from the police. It was his case that he struggled only because he was grabbed by men who were strangers to him and who he had failed to realize were policemen.

18. Mr. Saw secondly very properly indicated, as the appeal bundle was silent on the point, that the number which was common to the Applicant's shoes and the shoe-box, was a product code number of general application and not specific to the shoes worn by the Applicant.

19. Dealing later on in her summing up with the fifth point in the list of evidential matters from which inferences might be drawn, at page 15P the judge again turned to the Applicant's thumbprint on the box inside Room 4 and said:

"The print of his right thumb was found on one item found in the room. That item was a plastic box containing one piece of tissue and three plastic bags containing some of the dangerous drugs the subject-matter of the count. Between them, those three bags contained a total of 25.08 grammes of a mixture consisting of 20.49 grammes of heroin hydrochloride. This plastic box and its contents are Exhibit P2 listed in Appendix A to the Admitted Facts of which you each have a copy.

According to the 1st accused, the police asked him to pick up that box, and he did so. That, according to him, is how his thumbprint came to be on it.

Members of the jury, what do you think? Do you think that the officers did or might have behaved in that fashion? If you think that, then you must acquit the 1st accused. On the other hand, you are entitled, having seen and heard all the witnesses and received all the evidence, to feel sure, it is a matter for you, that the officers found what they say they found, no more or no less, and have come to court to tell you about it, honestly and accurately. If so, you are entitled, subject to the directions which I have given and will be giving to you, to convict the 1st accused."

20. Having given these directions about the evidence relating to D1's thumbprint, the judge then dealt with the evidence relating to the finding of D2's fingerprints. Having done so, the judge at page 18R said this in relation to both defendants:

"Members of the jury, as far as the evidence against each accused is concerned, it is the fingerprint evidence which is the most important. Without the fingerprint evidence against him, neither of them can be convicted. Against each accused, if you are sure that the fingerprint evidence relating to him is not to be accounted for in the way he suggests, you would be entitled to infer, it is a matter for you, that such fingerprint evidence points to his having handled the dangerous drugs in question. You are entitled, it is a matter for you, to take the view that all the dangerous drugs in Room 4 formed one single lot.

Having regard to the value of the drugs, HK$795,692 retail and having regard to how they are packed, you are entitled to take the view, it is a matter for you, that the only reasonable inference is that they were drugs which were being dealt in or with i.e. trafficked.

And if you are sure an accused handled the drugs, you are entitled in all the circumstances to infer, if you see fit, that he must have done so knowingly and in the course of dealing in or with them i.e. trafficked in them."

21. It was, as the judge had rightly pointed out, the thumbprint that gave a direct connection between the Applicant and Room 4. The thumbprint was on a container holding some of the drugs in a room where several other quantities of drugs were found. However, whilst that print was an essential plank in the prosecution's case, it clearly did not stand in isolation. The jury had all the other features of the evidence to consider. They could have been in no doubt that those who were responsible for the items in Room 4, which included an electric blender on which there were traces of heroin, were heroin traffickers. The Applicant was caught in close proximity, inside the building to which he had twice previously been seen going, wearing shoes that again provided a link, albeit of far less weight than the thumbprint, to the room where this valuable consignment of drugs was found.

22. In the light of all these matters, Mr. Saw, in the responsible exercise of his duty, reminded the court that the same jury that had convicted this Applicant went on to acquit D2. Both of the defendants during the trial had made out that they had innocent reasons for their fingerprints connecting them to the room where the drugs were found. Their explanations were, as Mr. Saw put it, "equally fatuous". He invited the court to approach with caution the integrity of the Applicant's conviction, even though he submitted that the judge had not fallen into material error in any of the directions which were given.

23. We have taken time in which to consider the submissions from both sides.

24. For the purposes of trafficking in any quantity of drugs, a defendant must be proved to have been in possession of the drugs, that is to have knowingly had them in his possession for the purposes of trafficking either by having them in his physical and actual custody or, which is relevant to this case, by having the drugs within his physical control and intending to have custody of them or to exercise control over them as and when the occasion requires. A person has physical control of an object if he knowingly has the ability, as and when the occasion requires, to use the object to the exclusion of other people or to keep it safe or away from other people, and intends so to use or keep it.

25. On the present facts, there was sufficient evidence to amount to a prima facie case against this Applicant for a jury, properly directed, to convict of trafficking. The thumbprint, set in the wider context of all the evidence of the Applicant's connection with Room 4, provided a sound basis for saying that the Applicant was one of those responsible for trafficking not merely in the drugs found inside the container with his thumbprint on it, but of all the drugs which were in the same place. When the jury rejected the Applicant's account of innocent association, the prima facie case was left intact. It is our view, therefore, that it was open to the jury to say that the only inference to be drawn was that the Applicant was in possession of the heroin for the purposes of trafficking. Obviously, in the unlikely event of a person being an innocent visitor to this room, which has understandably been described as a "drugs factory", and where others kept these drugs, his mere presence at the premises would not have made him guilty of trafficking. The Applicant, however, never raised in his evidence any suggestion that he had at any time visited the room so that it would have been inviting the jury to speculate if the judge had directed the jury along those lines.

26. The summing up was carefully tailored to meet the circumstances of this case in a way which was intended to give the greatest assistance to the jury. The issues on both sides were accurately summarised. It is, we are satisfied, abundantly clear that the jury rejected the Applicant's explanations and that they were then driven to the only sensible and reasonable conclusion open to them.

27. Accordingly, we have not found any proper basis on which to interfere with the conviction or to say that it was unsafe or unsatisfactory. The application must, therefore, be dismissed.

Representation:

Mr. D.G. Saw, S.C., S.A.D.P.P. and Miss Lily Wong, G.C. for D.P.P./Respondent

Mr. Chan Siu-ming instructed by D.L.A. for Applicant.