HKSAR v. Wong Ho Man and Another

CACC 223/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2008

(ON APPEAL FROM HCCC NO. 14 OF 2008)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Wright J

Date of Hearing: 10 June 2009

Date by which additional written submissions were received: 23 July 2009

Date of Handing Down Judgment: 3 September 2009

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.On 5 June 2008, following a trial in the Court of First Instance before Deputy Judge Geiser, the two applicants were found guilty of the following charges, that is, one joint charge of manufacturing a dangerous drug, the drug being cocaine, and two joint charges of trafficking in the same drug. Each applicant was sentenced to a total of 12 years’ imprisonment.

2.The first applicant sought leave to appeal his conviction on all three counts while the second applicant sought leave to appeal his conviction on the first count only, that is, the joint count of manufacturing a dangerous drug.

Background

3.The events which led up to the two applicants being prosecuted took place on 8 June 2007 in, or in the immediate vicinity of, a hotel in Kowloon called the San Diego. It was the prosecution case that, in the execution of a joint enterprise, the applicants used a room in that hotel to manufacture dangerous drugs by converting cocaine hydrochloride into what is commonly called ‘crack cocaine’ and then trafficking in one or other form of the drug.

4.At about six in the evening on 8 June 2007, police officers entered room 902 of the hotel. Inside the room, they found the first applicant, barefoot, sitting on the edge of the bed. The first applicant’s waist bag was found close to him. It contained the keys to the room, two notebooks and his driving licence. On the bedside table the officers found in excess of 30 grammes of cocaine together with various items of equipment including an electronic scale, a test tube, scissors, forceps, a cigarette lighter, two culinaryblow-torches and two inhaling devices.

5.In respect of the single joint count of manufacturing, a forensic scientist who was called to room 902 testified that all the necessary equipment was present for the chemical process of converting cocaine hydrochloride, a soluble form of the drug fit for ingesting by way of injection or ‘snorting’, into crack cocaine, an insoluble form of the drug fit for smoking. The forensic scientist testified that, to obtain crack cocaine, the usual process in Hong Kong involved dissolving a measure of cocaine hydrochloride and an alkaline chemical of low toxicity such as sodium bicarbonate in water and then heating the mix.

6.While no stock of sodium bicarbonate was found in the room, analysis of the paraphernalia found on the bedside table revealed traces of both cocaine hydrochloride and crack cocaine, an indication that at some time the equipment, or parts of it, had been used for the chemical process described above.

7.Although the DNA of the first applicant was found on a water bottle in the room, no fingerprints of the first applicant were found on any of the paraphernalia, this being an admitted fact at trial. However, it was the prosecution case that when initial enquiries were made of the first applicant and he was asked who owned the paraphernalia on the bedside table, he replied: “The stuff is mine”. It was the prosecution case that the first applicant was then cautioned and in reply to the caution said words to the effect: “Ah sir, I’m busted anyway. The goods and the cooking equipment are all here.”

8.Some 10 minutes after police entered room 902, other officers, who were on the street, saw the second applicant leaving the hotel carrying a laundry bag. The second applicant was stopped and searched. Cash in the sum of $51,290 was found on him together with a key to room 103 of the hotel and a packet containing in excess of eight grammes of cocaine.

9.When the police searched the laundry bag, they found more cocaine, in excess of two grammes. They also found a number of items, some of which bore traces of cocaine: an electronic scale, plastic bags, two pairs of scissors, lighters and a nail clipper. Importantly, the police also found in the laundry bag a test tube and a matchbox containing sodium bicarbonate. As we have said, the forensic scientist had identified a test tube found in room 902 of the hotel as being a piece of equipment that could (or would) be used in the process of converting cocaine hydrochloride into crack cocaine and had spoken of an alkaline chemical such as sodium bicarbonate being a necessary ingredient in the process.

10.It was the prosecution case that, when the second applicant was arrested and asked for his Hong Kong identity card, he said that it had been left in room 902 of the hotel. This was the room entered a few minutes earlier by the police where the first applicant had been found together with the equipment for converting heroin hydrochloride into crack cocaine. The second applicant was escorted up to room 902 but, at the entrance to that room, he remembered that his identity card had in fact been left in room 103, the room to which he possessed the keys.

11.When the police went into room 103 with the second applicant, there was a woman there by the name of Choi. She was the girlfriend of the second applicant. The second applicant’s identity card was found in the room. Two pairs of scissors were also found in the room, both bearing traces of cocaine.

12.The following day, when the second applicant was interviewed under caution, he admitted that he knew the first applicant who was a friend. He further admitted that the day before, that is, the day when the two applicants had been arrested, he had visited the first applicant in the hotel. However, he said that he could not remember either the room number or the floor.

13.As to the three counts of which both applicants were convicted, the first count of manufacturing related only to what the prosecution said had taken place in room 902. The second count of trafficking concerned the cocaine discovered in that room while the third count concerned the cocaine found on the person of the second applicant and in his laundry bag.

Evidence of joint enterprise

14.As we have said earlier, each of the three counts alleged a joint enterprise between the first and second applicant. While there was no direct evidence of this, there was considerable circumstantial evidence.

15.This evidence showed that in the weeks leading up to their arrest the applicants had had a close relationship. On 25 May 2007, the first applicant had had an accident driving a car registered in the name of the second applicant.

16.Of more direct relevance to the prosecution assertion of a business relationship was the fact that records revealed that, in the month before their arrest, there had been a total of 172 calls between the respective mobile telephones of the two applicants, averaging more than five a day. Indeed, the records revealed that there had been two calls between them on the afternoon of their arrest.

17.There was a further important link between the two, namely, the second applicant’s girlfriend, Choi. The evidence showed that, on 8 June itself, it had been Choi who had booked not only room 103, the keys to which were found in the possession of the second applicant, but also (from two o’clock that afternoon) room 902, the room where 1^st applicant had been found together with the manufacturing equipment.

18.As for the second applicant’s connection to room 902, in addition to the fact that it had been his girlfriend who had booked the room, there were two other evidential matters of importance. First, the DNA of the second applicant was found on one of the two culinary blow-torches found in that room. It was the evidence of the forensic scientist that implements such as culinary blow-torches were suitable for applying the necessary heat to the chemical process of converting cocaine hydrochloride into crack cocaine. Second, when, at the time of his arrest, the second applicant had been asked for his identity card, it was the prosecution case that he had told the police that he had left it in room 902, only remembering correctly where it had been left when he had reached the very entrance to that room.

19.Further circumstantial evidence linking the second applicant to the manufacturing process was to be found in the laundry bag carried by him when he was arrested leaving the hotel. While items such as an electronic scale, plastic bags and scissors could be required for trafficking only, the discovery of a test tube and a quantity of sodium bicarbonate were on the evidence of the forensic scientist, linked directly to the manufacturing process which she had identified.

The first applicant’s grounds of appeal

20.Three grounds of appeal were advanced by Mr Bernard Yuen, the first applicant’s counsel.

21.It was Mr Yuen’s first ground that the judge had failed in sufficient measure, or at all, to direct the jury as to the defence case.

22.Prior to trial, however, although, as we have said, the first applicant had made a brief response when arrested and cautioned, he had not later made any statement explaining his version of events. Nor at trial did he choose to give evidence or call witnesses. In practical terms, therefore, there was no defence, not one based on any positive assertion or explanation. That being the case, as this Court, differently constituted, has said in HKSAR v. Suen Yung Yung and Another CACC 509/2001, it was not part of the judge’s duty to build up a defence for someone who had chosen not to give the jury the benefit of his version of material circumstances and events. Nor, in the absence of a defence, was there a duty placed on the judge indirectly to construct one by listing each and every perceivable weakness in the prosecution case.

23.The first applicant chose to conduct his defence, as he was entitled to do, by putting the prosecution to the proof of its case. The second applicant chose to do the same. In light of this, the judge gave a clear direction to the jury in the following terms:

“The defendants, I must tell you, do not have to give evidence. They are entitled to sit in the dock and require the prosecution to prove its case. You must not assume that they are guilty because they have not given evidence. You still have to decide whether, on the prosecution evidence, you are satisfied of both defendants’ guilt on these three separate counts.”

24.Mr Yuen submitted, however, that the judge had still been obliged to direct the jury concerning a number of deficiencies in the prosecution case against the first applicant and that his failure to do so amounted to a material non-direction.

25.By way of example, Mr Yuen pointed to the fact that the judge had not directed the jury as to the lack of any forensic evidence showing that the first applicant had been in physical contact with any of the equipment or drugs seized by the police. That is correct. But nothing turns on the point. First, there was ample other evidence which, if the jury chose to accept it, connected the first applicant to the equipment and drugs. That was clearly where the main weight of the prosecution case lay and the judge chose to focus on that evidence. Second, the jury had with them a Statement of Admitted Facts which in the clearest of terms set out the extent of the forensic evidence, both as to fingerprints and DNA.

26.Mr Yuen further submitted that the judge had been in error in failing to highlight the tenuous evidence upon which the jury was asked to draw the inference that the two applicants had acted together in both the manufacture and trafficking of cocaine. In our view, however, the evidence, when taken together, as it must always be, was far from tenuous. No such warning was therefore required.

27.Mr Yuen went on to raise a number of matters in respect of which the prosecution evidence had been silent; for example, that there was no evidence as to when the first applicant had entered room 902 other than that it must have been some time after two o’clock that afternoon. We accept that in the present case, as in almost all cases of some factual complexity, there was not an answer to everything. But that did not impose on the judge the burden of trawling through each and every incident of possible uncertainty.

28.Nor is a judge obliged to direct a jury on every matter in respect of which there is no evidence. In the present case, the jury were warned that they must decide the case on the evidence before them and must not speculate as to what other evidence there may have been. That was sufficient.

29.As to Mr Yuen’s suggestion that there was a material deficiency in the prosecution case in failing to prove when the first applicant had first entered room 902, it suffices to say that the first applicant was found in the room with his shoes off. The manufacturing equipment and drugs were on open display close to him. It was never asserted by him that he had himself only just entered the room and that an earlier occupant must have been responsible for the equipment and drugs.

30.Mr Yuen’s second ground of appeal was to the effect that the judge had been guilty of a material non-direction by failing to impress on the jury that the statement of one defendant implicating another not made on oath during the trial itself was not evidence against that other defendant and must be entirely disregarded.

31.The statement to which this ground of appeal related was an admission made by the second applicant when he was interviewed under caution by the police that he knew the first applicant and had visited him in one of the rooms of the hotel on the afternoon that the two of them were arrested.

32.Mr Yuen contended that this evidence, if accepted by the jury as admissible against the first applicant, put the first applicant into direct physical contact with the second applicant within the hotel. This, he said, was further evidence, even if circumstantial, of a joint enterprise.

33.Nothing turns on this point. The applicants were charged as co-principals. As such the existence of a joint enterprise was not an essential element of the offence as it would have been if a conspiracy had been alleged.

34.In any event, that the two applicants were known to each other was never disputed. The evidence was overwhelming. That they had been in communication that day by telephone was not disputed. Records proved the fact. Nor could it be disputed that the second applicant’s girlfriend, Choi, had booked room 902, the room in which the first applicant was found together withthe paraphernalia and quantities of cocaine that we have earlier described. In the circumstances, an admission by the second applicant that he had that day visited the first applicant in an unspecified room in the hotel, the admission going no further than that, was of such minimal evidential consequence that in our view no direction concerning it was necessary.

35.Mr Yuen’s third ground of appeal related to the brief verbal exchange between the first applicant and an officer when the police first entered room 902. As we have said earlier, it was the prosecution case, denied by the first applicant, that, when initial enquiries were made of him and he was asked who owned the paraphernalia on the bedside table, he replied that the stuff was his. He was then cautioned and in response he said words to the effect: “Ah sir, I’m busted anyway. The goods and the cooking equipment are all here.”

36.Concerning this conversation, Mr Yuen conceded that, if the jury accepted the evidence, the initial answer of the first applicant to the enquiry made of him, namely, that the stuff was his, was a clear admission. He submitted, however, that the first applicant’s words after he had been cautioned were equivocal; in short, that they did not amount to a clear admission. That being the case, said Mr Yuen, it was important that the judge make it clear to the jury that both utterances should not be given the same weight. What was said before the caution was administered should be afforded less weight than what was said after.

37.There is nothing to this point. To suggest that what was said by the first applicant after he had been cautioned was equivocal, that is, ambiguous in some way, ignores the obvious. On any ordinary understanding of the words, they amounted to the clearest of admissions. Nor was the judge obliged to direct the jury to give less weight to the first utterance than the second. What weight, if any, was to be given to the two statements was a matter for the jury alone.

The second applicant's grounds of appeal

38.Although convicted of all three counts on the indictment, the second applicant has sought leave to appeal the first count only, that of manufacture of a dangerous drug. On that count, the second applicant was convicted by a majority of five to two.

39.Only one ground of appeal was advanced by Mr Loughran, the second applicant’s counsel. That ground also arose out of the verbal exchange between the first applicant and an officer when police entered room 902.

40.In respect of this exchange, the judge directed the jury that, if they were sure that the first applicant did say what he was alleged to have said, they may think that it would constitute powerful evidence against the first applicant on the charge of manufacture of a dangerous drug. Mr Loughran took no exception to that direction but said that it did not go far enough. The judge, he said, was obliged to direct the jury further that the first applicant’s admissions did not constitute evidence against the second applicant, whether on the count of manufacture of a dangerous drug or at all, and, in respect of the second applicant, must be disregarded.

41.In summary, it was counsel’s submission that the failure of the judge to give the well-established direction that the statement of one defendant implicating another not made on oath during the trial itself was not evidence against that other defendant amounted, in this instance, to a material non-direction. It was so because, when taken together with other relevant evidence, the jury may well have wrongly relied upon the first applicant’s admission that “the goods and the cooking equipment are all here” as proof for all purposes that manufacturing had taken place in room 902. That being the case, evidence of the second applicant’s association with the room and one item of paraphernalia found in it may have led the jury to conclude that the second applicant must have been a party to the manufacturing.

42.As it was, said counsel, the only admissible evidence against the second applicant that manufacturing had taken place in room 902 came from the forensic scientist who herself left the matter open to reasonable doubt. She did so because, while it was her expert opinion that the process of converting cocaine hydrochloride into crack cocaine could have taken place at the scene, she could only say that, in the absence of finding an alkaline chemical such as sodium bicarbonate in the room, there was over a 70% probability that manufacture had taken place there.

43.Even if an alkaline chemical such as sodium bicarbonate had been found in the room, the forensic scientist could not say for certain that manufacturing had taken place and would only put the probability at over 80%. On that basis, counsel argued that, even if the sodium bicarbonate found in the possession of the second applicant was taken into account, the matter was still open to reasonable doubt. In this respect, he said, it had to be remembered that the evidence of the forensic scientist, who had visited the scene and examined the seized items in the laboratory, was uncontradicted by other evidence.

44.In light of these submissions, we are of the view that it was, in this instance, necessary for the judge to have given a direction that the admissions made by the first applicant in room 902 did not constitute evidence against the second applicant.

45.However, being of the view that this may be a case in which the proviso should be applied, we gave counsel for the second applicant and counsel for the respondent time within which to make written submissions.

46.In order to apply the proviso we had to be satisfied that a hypothetical reasonable jury, properly directed, would inevitably have come to the same conclusion as the jury at trial or would no doubt have convicted. While the test anticipates the determination of a hypothetical jury, it is well settled that the view of the jury which actually tried the case must be a factor, albeit not a conclusive one. In respect of the second applicant, the jury found him guilty of manufacturing a dangerous drug by a bare majority of 5 to 2.

47.But, that being said, we have not had difficulty in coming to the conclusion that a reasonable jury, properly directed, would inevitably have found the second applicant guilty. We have therefore determined that the proviso should be applied. We say so for the following reasons.

48.Concerning the evidence of the forensic scientist, when it is appreciated that, when the police entered room 902, no chemical process was in action, we do not see how it would have been possible for her – solely on the basis of her forensic skills – to say that the process must nevertheless have taken place in that room and not, for example, at some other location and the used equipment simply transported there. But the forensic scientist was not the final arbiter of whether manufacturing had taken place. The jury heard all the evidence and it was for the jury to come to findings of fact based on that evidence. In our judgment, leaving aside the statement of the first applicant, there was still overwhelming evidence upon which the necessary inference could be drawn that the process of manufacture had taken place in room 902 at some time that afternoon.

49.First, there was evidence that the room had been booked by the second applicant’s girlfriend, Choi, from two o’clock that afternoon and that, before occupation of the room, it had been cleaned by hotel staff. On that basis the paraphernalia must have been brought into the room at or after two o’clock that afternoon. That raises the obvious question: why bring in all the necessary implements for the conversion process unless it was intended to use them for that purpose?

50.Second, when the second applicant was arrested leaving the hotel, he was found not only in possession of cocaine and paraphernalia fit for trafficking but also in possession of one piece of equipment and one chemical ingredient which, on the evidence, and absent any explanation to the contrary, were each required for the manufacturing process.

51.Third, there was expert evidence from the forensic scientist that the chemical conversion of heroin hydrochloride into crack cocaine could have been completed, with the available implements, within the four hours or so between occupation of the room and the arrival of the police. So the process of manufacture was entirely feasible with the time constraints.

52.Fourth, analysis of the paraphernalia found in the room revealed traces of both cocaine hydrochloride and crack cocaine, evidence that the chemical process had taken place at some time.

53.Fifth, even if the manufacturing had not taken place in room 902 but elsewhere in the hotel, the exact location was not an essential element of the offence.

Conclusion

54.For the reasons given, the application of the first applicant is dismissed; in respect of the second applicant, his application is allowed but, treating it as the appeal, and being satisfied that this is a proper case for application of the proviso, his appeal is dismissed.

Mr Bernard Yuen, instructed by Messrs Simon Ho & Co., assigned by Director of Legal Aid for the 1^st Applicant

Mr Paul Loughran, instructed by Director of Legal Aid, for the 2^nd Applicant

Mr Edmond Lee, SPPof the Department of Justice, for the Respondent