HKSAR v. Tsang Wai Chung

CACC000527/2002

CACC 527/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 527 OF 2002

(ON APPEAL FROM HCCC 347 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Jackson J

Date of Hearing: 9 December 2003

Date of Judgment: 19 December 2003

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.On 26 September 2002, the Applicant was convicted of trafficking in dangerous drugs and possession of arms and ammunition without a licence following a trial before Deputy Judge Line and a jury. He was sentenced on the same day to 28 years' imprisonment in totality. The Applicant now seeks leave to appeal against conviction and sentence.

Prosecution's case

2.The case presented by the prosecution was straightforward. On 24 May 2001, the Applicant was seen to visit a warehouse in Argyle Street, Mongkok, while police were carrying out a surveillance exercise on those premises. He let himself in with keys which were later found to fit the roller shutter and inner wooden door. After he had been inside the premises for about six minutes the Applicant came out and was arrested. When he was asked why he had been inside, he allegedly remained silent. However, when police enquired what was to be found in his premises, he was recorded as saying: "Ah Sir, just go upstairs and you will see them. They're inside the plastic box .... K Chai and cocaine".

3.In the subsequent search of the warehouse premises, which were arranged on two levels joined by a staircase, the drugs described by the Applicant were duly found on the higher level. This was referred to variously at trial as the "cockloft" or "mezzanine floor".

4.In count 1 of the indictment, the dangerous drugs were identified as 2.97 kilogrammes of a powder containing 2.42 kilogrammes of ketamine and 793.04 grammes of a solid containing 616.16 grammes of cocaine, all of which were in a transparent plastic box. In addition, the indictment listed 1,625 tablets and fragments, containing just over 31 grammes of estazolam. These were in a bag on the floor near to a bed. Nearby, was a beef knife and, in a wardrobe, police found a bag containing 16 extendable batons. One more baton, of a similar although not identical kind, was found on the ground floor level.

5.Further searching of the premises revealed a self-loading pistol and seven live rounds of ammunition, the subject of the second count on the indictment. When he was asked about this, the Applicant said: "People put the pistol here without my knowledge".

6.The police also visited the Applicant's home address in Sai Kung. During a search there, in the early hours of 25 May 2001, they found an extendable baton which was identical to the baton found on the ground floor of the warehouse premises.

7.In a video-recorded interview, the Applicant declined to answer any questions which related to the finding of the drugs (count 1) or the pistol and ammunition (count 2). So far as the baton found in his home address was concerned, he said that he had bought it.

8.Later enquiries revealed that the premises in Argyle Street had been leased to Madam Choy Yuen-han. She testified that she had employed the Applicant from 1997 until November 2000. He had been permitted to live in the warehouse without payment of rent during that time. Then, after she closed down her business and ceased to employ the Applicant, she sub-let the premises to him. The Applicant had thereafter, she said, paid rent to her.

9.In short, the prosecution alleged that with the strong links which the Applicant had to the premises and his knowledge of the drugs he was keeping inside them, he was clearly in possession of the drugs. The quantity and value of these, it was said, led to an overwhelming inference that these were for the purposes of trafficking. In relation to the gun, the prosecution's case was entirely circumstantial in the absence of any admission on the Applicant's part to having knowledge of its presence inside the premises.

Defence case

10.The Applicant gave evidence. In overall terms, his case was that he was unaware of the existence of the drugs and the pistol. He denied making any admission about the drugs. He also admitted telling a lie in the video-recorded interview about the baton found at his home address. He said that he had not bought it in a shop but had in fact taken it without permission from the warehouse premises.

11.The Applicant's account to the jury was that others, including Madam Choy's husband, Wong Wai-kwong ("Wong") had lived at the premises and had access to them. He said that he had stayed there until mid-January to paint the downstairs area because Madam Choy was going to use this part as a mahjong parlour. The Applicant said that when he left, some of his personal belongings remained behind but he had abandoned them. Sometimes he visited Wong there, but he had never paid rent to stay. Someone he knew as "Ah Ming" had given him a set of keys at the end of February 2001 which had enabled him to gain access to the premises. On the day of his arrest, he had gone to a restaurant nearby for dinner and, afterwards, he had then decided to go to the warehouse to use the toilet in preference to the one at the restaurant. When he left, he was arrested.

The application - conviction

12.Mr Macrae, SC, on the Applicant's behalf, advanced three substantive grounds of appeal when submitting that the verdicts were unsafe or unsatisfactory.

(1) The direction on aiding and abetting

13.The judge summed up the law, in relation to the possession of the drugs and the firearm, using the standard directions which are generally given as to knowledge and control. He then gave alternative directions, in the event the jury might conclude that the Applicant was aiding and abetting others in the trafficking of the drugs and the possession of the firearm and ammunition. For reasons we shall come to later in this judgment, we need only be concerned with the directions in relation to the drugs.

14.Mr Macrae submitted, in his first ground, that not only were the judge's directions on aiding and abetting a "departure from the way the prosecution had opened, closed and put its case" but were also "wrong in law, inadequate in all the circumstances and liable to confuse the jury".

15.The circumstances which led the judge to give the somewhat unusual directions for aiding and abetting an offence of trafficking, usually rendered unnecessary because of the broad definition of trafficking in section 2 of the Dangerous Drugs Ordinance, Cap. 134, arose from the nature of the Applicant's defence wherein he had sought to distance himself from recent contact with the premises. In contrast to his version, the essence of the prosecutor's allegations were accurately summarised by Mr Macrae when he pointed out it had been suggested to the Applicant that he was "living on the premises", that he was the "sole person" with keys to the premises and that "no one else" was involved with the drugs or the weapons apart from the Applicant.

16.Of course, while the prosecutor may have seen fit to put his case in this way, it did not necessarily follow, by the conclusion of the evidence, that the position would be viewed by others as straightforwardly as he had made out. Indeed, all the indications were to the contrary and we should deal with some of these straightaway.

17.Firstly, the allegation that the Applicant "lived on the premises" was contrary to an Admitted Fact that "on 24 May 2001, the (Applicant) resided at premises known as 3rd Floor, No. 24 Tin Liu Tsuen, Ho Chung, Sai Kung". Secondly, the suggestion that the Applicant was the only person with keys, when he was allegedly using the premises on a sub-lease, was most unlikely to be accurate as a matter of common sense. Thirdly, the suggestion that "no one else was involved with the drugs", having regard to their admitted value of about $2 million, was an unlikely state of affairs.

18.Furthermore, regarding all these points, Madam Choy said that she had seen others at the premises on her visits there to collect rent. She had taken them to be the Applicant's friends. She had not seen the Applicant at the premises since Chinese New Year, in January 2001. Perhaps rather more significantly, Madam Choy's husband's Taiwan entry permit was found in the same drawer as the pistol and ammunition. In addition, his fingerprint was found on a roll of tape in the premises, although it is only right to point out that this was different to the tape which had been used to package the drugs.

19.In this context, Madam Choy's husband, Wong, was a person who, unlike the Applicant, had a criminal record. His offences were incorporated in the Admitted Facts. Ignoring two very minor offences before 1987, he had been fined and given a one-month suspended sentence of imprisonment in 1990 for disorderly conduct and resisting arrest. Then, lastly, in 1991, he had been sentenced to a total of 15 months' imprisonment for wounding and criminal damage.

20.Taking all these factors into account, when considering the unwisely optimistic approach adopted by the prosecutor, it seems to us most unlikely that the jury would have entirely accepted prosecuting counsel's propositions.

21.The judge obviously formed the same conclusion. At the completion of the Applicant's evidence, he brought to the attention of the prosecutor and Mr Macrae, who was defending, the direction which he considered had become necessary in the light of all the material before the jury. This was helpfully done before counsel embarked on their speeches. The following dialogue then took place:

"	Court: .... Finally, the last thing is since I've written it out I can give it to you, if you like, that is the directions
		on the law as it relates to the charges. There's only one thing that I think you might want to think about is that's whether it needs an aiding and abetting direction. At the moment I've drafted one in here because it would be quite possible, it seems to me, on the facts, that the jury could find, if they wanted to, that they might go, 'Well, I'm not sure about control, but I certainly think he lent assistance to someone who did have control.'
		That's why I'm going to give you this now so you can think about it and so when it comes to speeches you can think about that aspect of the case. I've put that in there, but it's basically - and I shall give you it now - it's just the standard directions that you'll have anticipated, plus the aiding and abetting direction.
	Mr Macrae: Well, I remember that aiding and abetting standard direction is a little difficult to follow, so I'm
		grateful to have a look at it.
	Court: Well, this is my own, so it might be fraught with dangers, but it seemed to me it called for a standard
		aiding and abetting direction there. So have a think about that and say whatever it is you might want to say or not say before I actually come to my summing up. But I thought it right to draw that to your attention in case it would affect what you were going to say to the jury." (Appeal bundle pp. 191-192)

22.On the following morning, when Mr Macrae was asked if he wished to raise any matters arising from the discussion on the previous day, he replied: "No, my Lord". His silence, as he has accepted, indicated that he could see nothing objectionable in the proposed directions.

23.By the time of these proceedings, his view had changed. He submitted that the directions given to the jury may have led to a conviction on the basis that the Applicant merely "knew what was in the premises but did not or could not control or possess .... the drugs". The directions in the summing up to which he was referring, went as follows:

"If I can just deal with one last topic now, and it is this: what if you were sure that the accused man allowed others to store dangerous drugs in his premises to which he retained access and keys, knowing that they were dangerous drugs being stored. One of the matters you would have to determine is whether you were sure that he thereby had sufficient control of the drugs in the way I have explained. That would be a question of fact for you to decide. If the answer to that question was 'Yes' and the other ingredients I have told you of were proved, then you would find that person guilty as a principal offender.

If you were not sure that the accused himself was a principal offender because, for instance, you were not sure that he had sufficient control of the dangerous drug, then you would go on to a second stage. This second stage is a consideration of whether the accused may be guilty, not as a principal, but as a secondary party to the crime. A man is guilty as a secondary party to a crime if he deliberately assists another to commit it. The prosecution have to prove that the secondary party intended to assist and did assist and that he did so, knowing the facts that make what he was assisting, a crime. Thus in a case like this, if you were sure that another person was trafficking in the dangerous drugs and that the accused knew that and intentionally assisted him by providing a place for the trafficker to store the dangerous drug, then the accused would himself be guilty of the offence of trafficking in those drugs.

In order to convict the defendant on the 1st count, the prosecution has to prove either that the defendant trafficked in the drugs himself or that he knowingly assisted another to do so. If you have a reasonable doubt as to whether they have done that, then your verdict must be one of not guilty on Count 1." (Appeal bundle p. 10)

24.These directions, in the way the judge, with admirable clarity, had expressed them, dealt with a scenario which, in our view, the jury may well, for the reasons we have already given, have considered to be a possibility in the light of all the circumstances which eventually emerged. Mr Macrae had, very properly, been given ample time by the judge to consider this interpretation of the evidence and he had not for one moment doubted the good sense of the directions. Although he candidly admitted, in these proceedings, that he had not thought of what he now perceived to be the danger of the jury convicting on a wrong basis, it is our opinion that Mr Macrae's initial instincts were correct. The judge had properly directed the jury on an alternative basis which, in reality, stemmed from the way the defence had been presented.

25.Mr Daryl Saw, SC, in his response, submitted that what mattered above all else was that the jury had been left in no doubt as to what the prosecution had to prove, whether the Applicant was himself trafficking in the drugs or was helping others to do so. If the Applicant was the storekeeper himself, he was liable as a principal. If, on the other hand, he intended to assist others by knowingly providing them with a place to store their drugs, the Applicant was liable as an aider and abetter. Both situations were catered for in the directions because when the judge had earlier dealt with the Applicant as a principal in the offence, he said, when summarising the law:

"It is well-established that mere presence in the company of an object is not itself possession of it. If a person is invited to a meal at a friend's flat, he is not in possession of the objects in the flat simply because he is there and he knows the objects are there. The objects are not in his physical custody and he neither has the intention nor the authority to exercise control over them.

What the prosecution has to prove to establish possession by the defendant of the drugs in the premises at 92 Argyle Street are four things:

1. that the defendant knew they were there and intended them to be there;

2. that he had the necessary element of control over them and knew that he had that control;

3. that he knew they were dangerous drugs;

4. that he intended to exercise that control over them as and when required.

Those four things. As you know, it is the defendant's case that he knew nothing about these dangerous drugs." (Appeal bundle p. 7)

26.Mr Macrae's concern that the jury may have been misled into believing that they could convict, even if the Applicant had no control over the drugs, was misplaced. It had been made abundantly plain that, at the very least, the Applicant must have intentionally assisted someone who the jury were satisfied was trafficking in drugs, knowing of this and giving assistance to the trafficker by knowingly providing him with a place to store his drugs. No doubt the Applicant's control over the drugs, in such a situation, would have been reduced but, plainly, an element of control remained.

27.The alternative directions which the judge deemed necessary were because there was evidence that the Applicant may himself have been a storekeeper but, at the same time, there was other evidence, particularly in relation to the others who had access to the premises, which was capable of giving rise to the suggestion that he was aiding and abetting them. It was this evidence which distinguished the present case from the facts in HKSAR v Sze Siu-kin, CACC 125/1998. There, the appellant's conviction was quashed after this court found there was insufficient evidence of a joint enterprise. Mr Macrae also brought R v Bradbury [1996] Crim. L.R. 808 to our attention. However, this was a case which was so entirely different on its facts that we do not need to comment upon it beyond saying that the jury were not directed, unlike the situation in the present case, that mere acquiescence to what was going on was not enough to establish the defendant's guilt.

(2) Admission of material more prejudicial than probative

28.We can deal shortly with Mr Macrae's second ground of appeal in which he complained that the prosecution should not have been allowed to introduce the evidence of the finding of an extendable baton at his home address which matched one of those found at the warehouse premises. He submitted that the prejudicial effect of this evidence far outweighed its probative value in a way which the judge himself had highlighted in the summing up when dealing with two of the circumstantial items on which the prosecution relied. The judge said:

"Next, that the presence of the drugs, gun with ammunition, beef knife and batons in the same place indicate connection between them and that the only sensible explanation of that is that they are there to protect the criminal dangerous drug enterprise and that is because men who possess such quantities of drugs do not have the protection of the law in carrying out their crime, and criminal gangs who are involved in such enterprises have their whole operation beyond the mere storage of the drugs to protect.

Next is the finding of an identical baton at the defendant's home to the one on the ground floor in the premises and similar to the ones found in the cockloft. Does it demonstrate a connection not just to the premises but to the unlawful activities being carried on there, as those activities involved the availability of weapons. The(y) say that the nature of the baton is sufficiently unusual that the connection is justified and that on the defendant's case, he must have been in the premises at a time when someone had placed the batons there." (Appeal bundle pp. 27-28)

29.The judge also summarised the Applicant's evidence in relation to this single baton in these terms:

".... He agreed that the baton, Exhibit 175, was found at his home in Sai Kung. He said that he had taken it from the warehouse premises. He agreed that he knew the identical one was there but denied knowing anything of the other batons - the ones upstairs - the beef knife, the pistol, the bullets and the dangerous drugs." (Appeal bundle p. 31)

30.Mr Macrae described the notion of extendable batons "somehow being used to protect a drug trafficking operation" as being "fanciful and absurd". He submitted that the baton found at the Applicant's home had been introduced supposedly to forge a link between the premises and the Applicant's presence there, yet this had never been disputed. If the prosecution's real reason for the introduction of this evidence was to demonstrate the Applicant's possession of such a weapon to ensure the security of the drugs, then it was too tenuous a basis and should never have been admitted at all because of the prejudice it was likely to arouse.

31.Mr Saw pointed out that the evidence of this single baton was highly probative on the issue of the Applicant's recent connection with the premises, and the extent to which the Applicant had control over the items kept there. As for the use to which it might be put, the judge had spelt out what was no more than common sense.

32.In our opinion, Mr Saw's arguments were properly founded. We agree, also, that the potential usefulness of such a weapon to someone connected with the drugs trade, as the prosecution were alleging the Applicant was, amounted to no more than common sense. Indeed, it is for the same reason that it was perfectly legitimate, as Mr Macrae doubtless recognised when he made no application for severance, for the same jury to have tried together allegations of trafficking in drugs and the possession of a firearm.

(3) Directions needed to distinguish drugs and firearm evidence

33.In his last ground of appeal, Mr Macrae submitted that the judge did not "sufficiently distinguish the evidence on, and the jury's approach to, count 1 and count 2". In this context, specific complaints were made in the following terms:

"	(i)	it was not correct to say, in respect of the gun and ammunition, that 'no real attempt was made to hide them';
	(ii)	the gun and ammunition were found in a drawer on top, and in the immediate vicinity, of the Taiwan entry permit of one Wong Wai-kwong, the estranged husband of the premises' landlady, and a known criminal and wanted man;
	(iii)	the applicant had given an immediate explanation to the police upon their enquiry about the gun and ammunition;
	(iv)	the learned Deputy Judge's direction as to character did not extend to the applicant's immediate reaction when confronted with the gun and ammunition, nor did he give the jury any direction as to how to evaluate this important evidence."

34.The judge's directions had set out in full the law in relation to the firearms count and had warned the jury that this was a separate matter to which they must give separate consideration.

35.Later on, when the judge remarked that no real attempt had been made to hide the gun and the ammunition, this was part of a summary of points made by the prosecution which, in full context, read:

"Next, they say that the amount and value of the drugs is significant as no drug trafficker is going to leave drugs with a street value of getting on for $2 million available for a stranger to the drugs enterprise to find and common sense demands that those who controlled the drugs would want them safe from the eyes of those who were not a part of their scheme. They say the same goes for the pistol. Why involve the innocent, is the point.

Next, they say that the way the drugs and pistol were left in the cockloft display a trust in the place itself as being secure for such items as no real attempt was made to hide them. They say that if others - Wong Wai-kwong, Ah Ming, whoever - were storing drugs and weapons, then the last thing they would do is provide a key to someone who did not know what was going on." (Appeal bundle p. 28)

36.These points, involving someone with unrestricted access to premises which were being used to store a valuable quantity of drugs and a firearm, were plainly matters for the jury's consideration. However, while there was other evidence in relation to the drugs, there was nothing more to be said about the firearm.

37.The issue which has exercised us, therefore, arises not from the judge's directions which were impeccable, but from the paucity of the evidence in relation to the firearm. The Applicant had at no stage made any admission in relation to this weapon. When it was found, it had been placed in a position, inside a drawer and underneath some newspaper, which was out of immediate view.

38.Whilst it is apparent that a submission of no case to answer was never made to the judge, we have concluded that, highly suspicious though the circumstances were, the evidence on this count was insufficient to found a safe or satisfactory conviction.

Conclusion - conviction

39.We shall grant leave and, treating the hearing as the appeal, we dismiss the appeal in relation to count 1 but we allow the appeal on count 2.

40.Accordingly, the firearm conviction on count 2 is quashed and, of course, the 12-year sentence imposed for it.

Sentence

41.The application for leave to appeal against sentence is to a large extent rendered unnecessary in the light of our decision on count 2. The gravamen of Mr Macrae's submission was that while the individual sentences imposed by the judge on counts 1 and 2 could not be criticised, the totality of 28 years was manifestly excessive.

42.A sentence of 22 years' imprisonment was imposed on count 1. In passing sentence the judge commented that the Applicant, then aged 27, must have been aware, before he entered a criminal enterprise of this gravity, of the risks he was taking. The judge remarked that the quantity of cocaine alone would have justified a starting point in the region of 20 years and for the ketamine, taking the same guidelines as for ecstasy, a 10-year starting point would have been justified. The judge went on to say:

"I readily countenance the suggestion that other people would have been involved in these crimes and I'm quite willing to sentence you on the basis that your role was to assist in the enterprise. But the guidelines that I've already referred to cater for such involvement. They are mostly applied, as related to drugs, to couriers and people who look after the drugs....." (Appeal bundle p. 136)

43.The sentence imposed by the judge was not, in our opinion, open to any criticism.

44.Accordingly, the application for leave to appeal against the 22-year sentence imposed on count 1 is dismissed.

Representation:

Mr D.G. Saw, SC, DDPP and Ms Chan Shook-man, Alice, SGC,of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC, instructed by Messrs Chan & Tsu, for the Applicant.