HKSAR v. Poon Kiu Yu

[English Translation-英譯本]

CACC 33/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 33 OF 2009

(ON APPEAL FROM DCCC 664 OF 2008)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Yeung JA in Court

Date of Hearing: 2 December 2009

Date of Judgment: 18 December 2009

JUDGMENT

Tang VP:

1.I agree with the judgment of Cheung JA and would grant leave to appeal to the applicant for the same reasons, treat the hearing of the application as the appeal proper, but dismiss the appeal.

Cheung JA:

2.I agree with the judgment of Yeung JA dismissing the applicant’s appeal.   

3.I will express my opinions on the applicant’s “burden of proof”.  The presumptions in section 47(2) of the Dangerous Drugs Ordinance only require the defendant to carry the evidential burden of proof.  He needs to adduce sufficient evidence to raise an issue, so that the judge is obliged to leave the issue to the jury’s decision: Bratty v A-G for the Northern Ireland [1963] AC 386.  The defendant’s burden in this regard is distinct from the “legal burden of proof” or “persuasive burden of proof”.

4.In Hong Kong, the legal “burden of proof” in criminal cases is borne by the prosecution: AG v. Hui Kin Hong [1995] 5 HKPLR 100.  If the prosecution fails to satisfy the “legal burden of proof” in respect of the issues in dispute, the court shall find the defendant not guilty.

5.The provision of section 47(2) only requires the defendant to adduce evidence to raise an issue for the court to address.  Hence, I am of the view that by electing to give evidence in his own defence, the applicant in this case has already satisfied this “burden of proof”.  The issue Judge Chan needs to address is whether the applicant knew the nature of the drugs in question.  The legal “burden of proof” in respect of this issue has all along been borne by the prosecution, which the prosecution has in fact already fully satisfied.

6.It is my view that even if Judge Chan has applied inappropriately the presumption in section 47(1) so that serious mistakes were made in the course of the hearing, this court can still dismiss the appeal by applying “the proviso”.

7.The drugs involved in this case are 22.69 grams of cocaine.  The drug traffickers must have considered that they could profit from this consignment of drugs before engaging in this illicit activity.  In carrying out this illicit activity, it is unthinkable that Law Ching Yan (transliteration) would rashly ask the applicant to handle this consignment of drugs of considerable value without telling him that the contents of the parcel are dangerous drugs.  Law Ching Yan must obviously have trust in the applicant by asking him to make arrangements for the collection of the parcel.  If the applicant believed that the parcel he was going to collect merely contained game cartridges, there is absolutely no need for him to take such a circuitous approach by instructing an accomplice to collect the parcel whilst keeping him under observation during the process.  In these circumstances, a reasonable jury would no doubt presume that the applicant knew the parcel contained dangerous drugs, and he was one of the drug traffickers.

Yeung JA:

8.In May 2008, someone called Jason Chow mailed a parcel (“the parcel”) containing cocaine from Canada to Hong Kong through Federal Express.  The recipient of the parcel was Lam Hoi Fung (transliteration), and the address of the recipient was falsely given as Flat 1814, 18/F, Mei Yat House, Yat Tung Estate, Tung Chung, Hong Kong.  Lam Hoi Fung was at the time under 14 and resided at Tung Lung House, Tai Hang Tung estate.

9.The parcel arrived at Hong Kong on 20 May 2008. An employee of Federal Express handed over the parcel for customs clearance. It was confirmed thereafter that there was inside the parcel 27.16 grams of crystallized substance containing 22.69 grams of cocaine.

10.Customs officer 98362 restored the parcel to its original state and resealed it, and then delivered the parcel to Lam Hoi Fung at the aforesaid false address posing as an employee of Federal Express, but nobody answered the door.  The parcel was subsequently sent to the service centre of Federal Express in Cheung Sha Wan for the recipient to collect.

11.Lam Hoi Fung collected the parcel on 21 May 2008 and was arrested by customs officers.  Shortly after his arrest, his mobile phone rang twice.  The caller ID revealed that the caller was Benz and his telephone number was 6688-0233. Based on the information provided by Lam Hoi Fung, customs officers immediately proceeded to the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, where they saw the applicant Poon Kiu Yu and Law Ching Yan chatting and arrested them.

12.Customs officers subsequently took Law Ching Yan to his residence in Kam Wah Building for a search, where they found a quantity of cannabis, two packets of soda powder, three packets of yellow crystallized substance and 107 plastic packets in the size of 12cm x 8 cm.

13.According to customs officer 9444, when he intercepted the applicant outside the 7-11 store at the junction of Fuk Wing Street and Castle Peak Road, the applicant did produce his identity card, but appeared to be taken aback.  He revealed under caution that he knew Lam Hoi Fung and Law Ching Yan, and admitted having just made two telephone calls to Lam Hoi Fung.

14.At a video-recorded interview held subsequently, the applicant told customs officers that some time before the incident, he was asked by Ah Ken, a friend he had known for just over a month, to collect something sent to Ah Ken from abroad, as Ah Ken was too busy to collect it himself.  Ah Ken also promised to give him 1,000 dollars as a reward, but as he was engaged in work, he therefore asked Lam Hoi Fung to perform the task instead.  The applicant indicated that Ah Ken had obtained from him the name and identity card number of Lam Hoi Fung.

15.The applicant went on to say that on 20 May 2008, Ah Ken told him to instruct Lam Hoi Fung not to go to the Tung Chung address to collect the parcel, but instead should telephone the express services company to make other arrangements.  Subsequently, Lam Hoi Fung made arrangements with the company to collect the parcel at the Cheung Sha Wan service centre of Federal Express.  Eventually, the applicant arranged with Lam Hoi Fung to go to the Cheung Sha Wan service centre together to collect the parcel.  When the applicant was in the vicinity of the service centre, he received a telephone call from Ah Ken and was told to wait for him.  When Ah Ken arrived, the two of them entered a restaurant where they waited for Lam Hoi Fung.  They were arrested by customs officers when they left the restaurant.

16.The applicant said that after meeting up with Ah Ken, he instructed Lam Hoi Fung to go alone to the service centre to collect the parcel.  The applicant claimed that Ah Ken had described the parcel as very important, but without specifying what it was.  He was not surprised by Ah Ken’s offer of 1,000 dollars to him as a reward, as Ah Ken appeared to be well off and always bought him drinks.

17.The applicant alleged that Ah Ken had said he was not free, but suddenly turned up on the day of the incident, and asked immediately after seeing him whether the parcel had been collected.

18.The applicant also indicated that it was Ah Ken who called him up on each occasion, and he did not store Ah Ken’s telephone number in his cell phone.  The applicant claimed that he had never seen the parcel in question, nor did he know what it was.

19.Due to the incident mentioned above, the applicant, Lam Hoi Fung and Law Ching Yan were jointly charged with the offence of trafficking in 27.16 grams of crystallized substance containing 22.69 grams of cocaine.  They all denied the charge.

20.They were all convicted after trial in the District Court by Judge Stanley Chan, and the applicant was sentenced to five years’ imprisonment.

21.The applicant had applied for leave to appeal against both conviction and sentence, but abandoned on 5 August 2009 his application for leave to appeal against sentence, which the court dismissed accordingly.  Now I only need to deal with his application for leave to appeal against conviction.

The Applicant's Defence

22.The applicant basically did not dispute the prosecution’s case against him, he also agreed that he gave the record of interview voluntarily.  He only wanted to prove during his cross-examination of the prosecution witness that at the time of his arrest, he had on his person 292 dollars, a mobile phone, a Hang Seng Bank ATM card, a game card and an identity card etc.

23.The applicant gave evidence in his own defence.  He stated that he had known Law Ching Yan for over a month before the incident, but did not know what his occupation was.  He only got the impression that Law was well-off and kind to others, because they had had drinks together on three or four occasions and every time Law volunteered to foot the bills.

24.The applicant stated that two weeks before the incident, Law Ching Yan asked him to collect a parcel, but he refused on the ground that he was busy.  Law Ching Yan later offered a reward, the applicant then sought Lam Hoi Fung’s assistance and promised to pay him 1,000 dollars.

25.The applicant said he believed the parcel contained game cartridges mailed from abroad, but he had no idea why Law Ching Yan did not contact Lam Hoi Fung direct.

26.The applicant said he was woken up by Law Ching Yan’s call on the day of the incident, and was told that the parcel had arrived in Hong Kong according to the results of the enquires made online.  The applicant also stated that Lam Hoi Fung had arranged with the express services company to collect the parcel at the Cheung Sha Wan service centre at 2:30 pm.  He told Lam Hoi Fung to go alone to collect the parcel as he was in a hurry.  The applicant stressed that the parcel was Law Ching Yan’s and it was collected by Lam Hoi Fung.  He admitted that during the time when he was waiting for Lam Hoi Fung together with Law Ching Yan in a restaurant, he telephoned Lam Hoi Fung twice in the span of several minutes.  He did so because Law Ching Yan wondered why it took Lam Hoi Fung so long to come and was a bit anxious.

27.The applicant stressed that he did not know that the parcel contained dangerous drugs, he was “hoodwinked” and hence was dumbfounded when he was intercepted by customs officers.

28.The applicant said Law Ching Yan did not know Lam Hoi Fung, and Lam Hoi Fung had provided the name of another person surnamed “Shi”.  He stressed that the 1,000 dollars he promised Lam Hoi Fung was to be paid by Law Ching Yan.  He had also provided information of the person surnamed “Shi” to Law Ching Yan, but Law indicated that the parcel would be mailed to Lam Hoi Fung.

29.The applicant said that he was too busy to collect the parcel and so he had to give up the reward of 1,000 dollars. Given that the parcel was registered with Lam Hoi Fung as the recipient, the applicant was put in an awkward situation when Lam Hoi Fung expressed reluctance to go and collect the parcel.  He urged Lam Hoi Fung not to change his mind as he had promised Law Ching Yan that the parcel would be collected.  Eventually Lam Hoi Fung agreed to collect the parcel.

30.The applicant agreed that he had not mentioned Lam Hoi Fung’s age to Law Ching Yan, and Law Ching Yan also did not request to know Lam Hoi Fung’s address.  The applicant said he wrote down the names of Lam Hoi Fung and the person surnamed “Shi” and their identity card numbers on a piece of paper and gave it to Law Ching Yan.  He did not write down any addresses.

31.The applicant said Law Ching Yan and Ah Ken were the same person, and he sought Lam Hoi Fung’s assistance in collecting the parcel for Law Ching Yan as he knew that Lam Hoi Fung was always short of money.

32.The applicant stressed that he sought Lam Hoi Fung’s assistance because he himself was engaged in work and did not know whether he could spare the time for the collection of the parcel.  He also stressed that it was Law Ching Yan who made arrangements for the parcel to be redirected to the Cheung Sha Wan service centre.

The Evidence of Law Ching Yan

33.Law Ching Yan also gave evidence in his own defence.  He stated that he was instructed by a person nicknamed “Ko Lo” to collect some liduokayin, a legal chemical substance.  He would then pass it on to someone else and wired the money received from the transaction to “Ko Lo”.

34.Law Ching Yan said he approached the applicant directly, asking him to get the assistance of a “young lad”.  He indicated to the applicant that the person should preferably be someone who did not know him and had not seen him before, and the applicant could deal with the reward of 1,000 dollars as he liked.

35.Law Ching Yan said he and the applicant arranged to meet at a MTR station on the day of the incident, and the applicant was to pretend that he did not know him.  Subsequently, when he saw the applicant and Lam Hoi Fung, he instructed the applicant over the telephone to tell Lam Hoi Fung to collect the parcel and then wait outside a restaurant.  He told the applicant that he would meet up with him only after Lam Hoi Fung had left.  Subsequently, he also instructed the applicant to telephone Lam Hoi Fung to inquire of him whether he had collected the parcel.

36.Law Ching Yan also said he had asked the applicant for his address, intending to make him the recipient of the parcel, but the applicant declined.

The Ruling of the Trial Judge

37.The trial judge held that the applicant served as a go-between for Law Ching Yan and Lam Hoi Fung by passing on Law Ching Yan’s instructions to Lam Hoi Fung for him to carry out and would share the reward of 1,000 dollars with Lam Hoi Fung.

38.The trial judge also held that on the day of the incident, the applicant did assist Lam Hoi Fung in collecting the parcel from the Cheung Sha Wan service centre.  He had also arranged to meet Law Ching Yan, who would not see Lam personally, but would follow Lam and the applicant and keep them under surveillance.

39.The trial judge rejected the applicant’s plea of innocence and held that he acted as a go-between and got a young lad to collect the parcel upon Law Ching Yan’s instructions, and would receive 500 dollars as his reward.

40.The trial judge stressed that the applicant had time to spare to collect the parcel together with Lam Hoi Fung and that there was no reason why the applicant could not do so.  If the collection of the parcel was aboveboard and honest, the applicant should have collected it personally, instead of adopting such a circuitous and deceptive approach.

41.The trial judge held that although there was no direct evidence proving that the applicant had possession of the parcel and knew that it contained dangerous drugs, section 47(1), 47(2) and 47(3) were all applicable to the applicant and could prove his guilt.

42.The trial judge held that the applicant had “constructive possession” of the parcel in question and the presumption in section 42(2) also applied.  He also held that the applicant knew the parcel contained dangerous drugs, and that he was an accomplice of Law Ching Yan and Lam Hoi Fung.  The applicant was therefore convicted of the offence of Trafficking in Dangerous Drugs.

Grounds of Appeal

43.The two barristers representing the applicant, Charles Chan and William Hui, did not dispute the trial judge’s finding of fact, but submitted that the trial judge erred in his application of the presumption in section 47 of the Dangerous Drugs Ordinance.  They submitted that if the trial judge had not erred in that respect, he might have accepted the applicant’s explanation given in his own defence showing that he did not know the parcel contained dangerous drugs.

44.Mr Chan stressed that according to section 47(1), the “presumption of the possession of dangerous drugs” could only be made when there was “physical possession” of anything containing or supporting a dangerous drug or the keys of the containers involved, and the “constructive possession” of anything containing or supporting a dangerous drug or the keys of the containers involved could not lead to the presumption of the possession of the dangerous drugs contained in those things or the containers involved.

45.Mr Chan asserted that the trial judge only held that the applicant had “constructive possession” as opposed to “physical possession” of the parcel in question; and therefore he could not find the applicant in possession of the cocaine contained in the parcel by relying on section 47(1).

Discussion

46.Section 47 of the Dangerous Drugs Ordinance stipulates that:

“(1) Any person who is proved to have had in his physical possession –

(a)  anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

47.Section 47(1) provides that any person who has in his physical possession anything containing a dangerous drug or the keys of those containers shall be presumed to have had such drug in the container in his possession.  Section 47(2) provides that any person who is proved or presumed to have had a dangerous drug in his possession shall be presumed to have known the nature of such drug.  Of course, both presumptions mentioned above can be rebutted.

48.In law, the possession of dangerous drugs falls into three categories:

(1) Physical possession, for example, where dangerous drugs were found on someone’s person or in the articles carried by him, the drugs found on his person or in the articles carried by him are in that person’s physical possession.

(2) Presumed possession, which is triggered by section 47(1) of the Dangerous Drugs Ordinance.

(3) The “constructive possession” referred to by the trial judge, which differs from “presumed possession”.  If any person is aware of the existence and nature of a certain article and can at the same time exercise control over it, then even if the article is not in his physical possession, it is still in his “constructive possession”.

49.In his reasons for verdict, the trial judge said that section 47(1), 47(2) and 47(3) were all applicable to the applicant, but he also stated expressly that the applicant had “constructive possession” of that parcel.  The trial judge mentioned specifically that “the 2^nd defendant (the applicant) instructed the 1^st defendant (Lam Hoi Fung) to collect the parcel, and acted as a go-between and issued orders as to the place and time of the collection of the parcel.  There is no reason why the 1^st defendant had to rush to the express service centre to collect the parcel, nor is there any reason why the 2^nd defendant did not collect the parcel together with the 1^st defendant.”

50.In fact, it is an undisputed fact that the applicant knew all along that the parcel was sent to Hong Kong by courier service.  He also acted upon Ah Ken’s instructions by telling Lam Hoi Fung to make telephone enquiries with the courier service company and not to go to the false address in Tung Chung to collect the parcel.  Subsequently, after learning that the parcel was kept at the Cheung Sha Wan service centre of the courier services company, he arranged with Lam Hoi Fung to go there to collect the parcel.  After meeting up with Lam Hoi Fung, the applicant instructed Lam Hoi Fung to go alone to the service centre to collect the parcel, while he and Law Ching Yan waited nearby.  He had also telephoned Lam Hoi Fung twice inquiring about the situation while he was waiting.

51.The aforesaid undisputed evidence shows that the applicant not only knew the existence and movements of the parcel, but also exercised absolute control and dominion over it.  Hence, the parcel must be in the applicant’s “constructive possession”.

52.The applicant had in his possession a parcel with the dangerous drug cocaine inside, not anything containing or supporting cocaine, still less the keys of any containers of cocaine.  Hence, the prosecution does not need to rely on the “presumed possession” provided for in section 47(1) of the Dangerous Drugs Ordinance to prove that the applicant was in possession of the cocaine involved.

53.According to section 47(2) of the Dangerous Drugs Ordinance, when the applicant is in possession of the parcel containing cocaine, he shall be presumed to have known the nature of such drug.  Of course, the purpose of the section 47(2) presumption is just to impose the “evidential burden of proof” on the defendant, requiring him to adduce evidence to show that he has no knowledge of the nature of the drug in his possession, while the prosecution is still obliged to prove that the defendant knows the nature of the drugs: HKSAR v Hung Chun Wa & Another [2006] 3 HKLRD 841.  If the defendant’s explanation that he had no knowledge is accepted, or if his explanation creates any reasonable doubts, the defendant must be acquitted.  Even if the defendant’s explanation is totally rejected, provided that there are any doubts in the prosecution evidence regarding the defendant’s knowledge, the defendant must still be acquitted.  The burden of proof is upon the prosecution. The prosecution is obliged to prove that the defendant has knowledge of the nature of the drug.

54.Since the applicant in this case is in “constructive possession” of the cocaine inside the parcel, section 47(2) of the Dangerous Drugs Ordinance thus imposes upon him an evidential burden of proof.

55.Although the applicant gave evidence in court, his evidence was totally rejected by the trial judge.  His evidence also failed to create any doubts showing that he had no knowledge of the nature of the dangerous drugs cocaine in the parcel.  Mr Chan did not raise any disputes in that regard.

56.According to the applicant, Law Ching Yan had promised to give him 1,000 dollars as a reward for collecting the parcel.  As the trial judge had rightly pointed out, the reward of 1,000 dollars for such a simple task as collecting a parcel was definitely a very attractive way of making quick money, which under normal circumstances would not happen at all.  And if the applicant had not known the nature of the contents of the parcel, he would not have “given away” to Lam Hoi Fung the whole or half of the easy money of 1,000 dollars.

57.I cannot disregard the undisputed evidence showing that the applicant was essentially staying with Lam Hoi Fung throughout the incident, giving him instructions and observing his every move in the collection of the parcel.  As the trial judge had stressed that if the act was aboveboard and honest, the applicant would not have adopted such a circuitous and deceptive approach to collect the parcel.  There is nothing in the evidence providing any plausible reasons which explain why the applicant displayed such extremely unusual behaviour.  According to the prosecution case and since the applicant failed to give any plausible reasons to explain, rebut or overturn the prosecution’s evidence, a reasonable and irresistible inference to be drawn must be that the applicant all along knew the parcel contained dangerous drugs.

58.Although the trial judge had mentioned section 47(1) of the Dangerous Drugs Ordinance, he in fact did not need to rely on the presumption provided for in that section.  A careful analysis of the trial judge’s reasons for verdict reveals that the applicant was held to be in “constructive possession” of the parcel, and the irresistible inference is that the applicant knew the parcel contained dangerous drugs.

59.Mr Chan submitted that if the trial judge had not made the mistake relating to section 47(1) of the Dangerous Drugs Ordinance, he might have accepted the applicant’s account that he believed that the parcel contained game cartridges.  I disagree.  If the applicant believed that the parcel contained game cartridges, he definitely would not handle the parcel in the suspicious manner mentioned above.  It is absolutely correct for the trial judge to reject the applicant’s explanations.

60.The applicant was in “constructive possession” of the cocaine involved in this case, and had failed to discharge the burden of proof placed on him by the Dangerous Drugs Ordinance to rebut the presumption.  The irresistible inference is that he knew the nature of the contents of the parcel were dangerous drugs.  There are not any doubts which conflict with the inference.  Taking into account the quantity of the cocaine involved and the fact that it was delivered to Hong Kong from abroad through an courier services company, the applicant must have been trafficking in dangerous drugs or possessing the dangerous drugs for the purpose of trafficking.

61.The trial judge’s misunderstanding over section 47(1) of the Dangerous Drugs Ordinance did not affect his decision of convicting the applicant.  I can see nothing unsafe and unsatisfactory about the decision to convict the applicant of trafficking in dangerous drugs.  The trial judge’s mistake about section 47(1) of the Dangerous Drugs Ordinance had actually no substantive effect on the verdict in this case.  Hence I am of the view that this court does not need to invoke the “proviso”.  I dismiss the applicant’s application in relation to his conviction.

Tang VP:

62.By a majority, we grant the applicant’s application for leave to appeal but invoke the “proviso”. We dismiss his appeal unanimously.

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, Department of Justice, for the respondent.

Mr Charles Chan and William Hui, instructed by Ivan Tang & Co., for the applicant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.