HKSAR v. Tsang Wai Chung

FAMC No. 27 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACC No. 527 of 2002)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 27 September 2006

Date of Determination: 27 September 2006

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.The applicant was convicted of trafficking in dangerous drugs following a trial before Deputy High Court Judge Line and a jury.  His simultaneous conviction on a firearms charge was quashed by the Court of Appeal and is no longer relevant.

2.The applicant was seen using keys to enter a warehouse where substantial amounts of ketamine, cocaine and estazolam were found.  There was also other evidence linking him to that warehouse.

3.The prosecution’s case was that he was in possession of, and guilty of trafficking in, those drugs as a principal offender.  However, the applicant gave evidence testifying that he was unaware of the drugs, that he was not the tenant of the premises, and that he had entered them for an innocent purpose.

4.In the light of the evidence, before closing speeches, the Judge showed to counsel an intended direction to the jury on possible liability for aiding and abetting, seeking their submissions.  Having considered it overnight, counsel then appearing for the applicant stated that he did not have any submissions to make on it.  At that stage, he could see nothing wrong in what the Judge was proposing to say to the jury.

5.The Judge directed the jury accordingly.  He told them that if they were not sure that the applicant was a principal because they were not sure he had sufficient control of the drugs, they had to consider whether he was guilty as a secondary party.  They were told that for there to be such liability, they had to be sure that another person was trafficking in those drugs, that the applicant knew this and had intentionally assisted that person by providing a place to store the drugs.  It is not suggested that that was a misdirection.

6.The ground sought to be argued on appeal to the Court is that there should not have been any direction on secondary liability at all because the prosecution case had always been advanced solely on the basis of principal liability, and because secondary liability was not put to the applicant in cross-examination.  

7.As to this objection, the Court of Appeal in paragraph 27 stated:

“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.”

8.The Judge was not bound by the prosecution’s initial view of the matter and needed to direct the jury on the evidence which had been adduced.  Moreover, as Mr Cheung Wai-sun, appearing for the HKSAR, submits, the applicant’s case was no different, whether charged as a principal or secondary party.  His fundamental assertion was that he did not know of the drugs.  The jury were properly directed that they could only convict on either basis if they were sure that the applicant had the requisite knowledge.  It is not reasonably arguable that the conviction involves any substantial and grave injustice and the application must be dismissed.

Mr Andrew Bruce SC (instructed by Messrs Solomon C Chong & Co and assigned by the Legal Aid Department) for the applicant

Mr Cheung Wai Sun and Ms Winnie Lam (of the Department of Justice) for the respondent