HKSAR v. Lee Chi Hang Blues

CACC 76/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 76 OF 2009

(ON APPEAL FROM HCCC NO. 134 OF 2008)

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Before:   Hon Stock V-P, Yuen JA and Lunn J 

Date of hearing: 6 May 2010

Date of judgment: 6 May 2010

Date of Reasons for Judgment:  11 May 2010

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REASONS   FOR   JUDGMENT

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Hon Yuen JA (giving the reasons for judgment of the Court):

1.On 15 January 2009 Lee Chi Hang Blues (the Applicant) was convicted by a jury of trafficking in dangerous drugs following a trial before Deputy Judge Longley.  The dangerous drugs seized comprised 114.33 grammes of ‘Ice’, 8.82 grammes of cocaine, 7.78 grammes of cannabis in herbal form, 39.97 grammes of cannabis resin, 3 milligrammes of tetrahydrocannabinol and 252 tablets and tablet fragments containing 0.569 gramme of nimetazepam, with a total street value of about $74,000.  The Applicant was sentenced to 12 years imprisonment.

2.The Applicant sought leave to appeal on the ground of “lurking doubt”.  There was no application for leave to appeal against sentence.  She was represented by Mr Marash SC and Mr Albert Cheung on the application, having been represented by Mr Plowman SC at the trial. 

3.At the conclusion of the hearing of the application on 6 May 2010, we dismissed the application and we now give our reasons for doing so.

Prosecution case

4.The dangerous drugs were found in a flat in Fu Lee Loy Building, King Wah Road, North Point, on 15 October 2007.  The police witnesses testified that they gained entry when the Applicant emerged from the flat at about 7:30 pm.  The Applicant’s evidence at the trial was that she was inside watching television on her own when the police somehow gained entry.

5.It was common ground that the flat was rented by a company called Sweet in Touch Co Ltd.  At the date of the seizure, the Applicant was one of two directors of this company and its majority shareholder.  The other director was Luk Ka Fung (“Luk”) who was a minority shareholder.  The tenancy agreement provided that the flat was to be used by the Applicant and her family and domestic staff.  This is consistent with the evidence of Pauline Tam, a minority shareholder and former director of the company, who testified that she had found the flat for the Applicant who said she needed residential premises.

6.The flat was very small, basically a studio apartment containing a sofa and a bed, with a small kitchen and a toilet accessed through the kitchen.  We have seen photographs showing the relevant locations and containers of the various quantities of drugs, as well as a sketch plan showing the layout of the premises.

7.The dangerous drugs were found in the kitchen in five different places - on the counter to the right of the sink; on the counter to the left of the sink; in a cupboard above the refrigerator; in a box lying on top of the refrigerator and in packets in a compartment of the refrigerator itself.  On the right-hand counter there were openly visible two bottles with tubes (one larger than the other) which have been referred to as “smoking pots”, which may be described as “hookahs”, a clear glass jar containing herbal cannabis and an open red tin containing 15 rolled up packets of cocaine.

Defence case

8.The Applicant’s case, according to her testimony at trial and a video recorded interview some two months after the arrest, was that she was not in possession of the dangerous drugs.  She said she had gone to the flat the night before her arrest, stayed overnight and left at noon that day.  She said she had gone into the kitchen during that period and opened the refrigerator, and the packets in which the drugs were found during the police search were not there at the time.  She said the bottles with tubes and the metal boxes and glass jar were not beside the sink.  She went back to the flat at around 5:30 pm or 6:00 pm and was there alone for about 2 hours until the police came.  She said that during this time she had gone to the toilet through the kitchen but she had not noticed the drugs anywhere, including those on the counter.  She said she had not switched on the lights in the kitchen or the toilet and that it was dark there.  The police witnesses said the lights were on when they entered the flat.  

9.The Applicant denied that the flat was for her own use and said that it had been rented or used as quarters or a place of rest for staff of the company which was in the business of gift hampers, and that apart from herself, Luk and another shareholder Mandy Ma, the keys to the flat had also been given to a person called Liu Ki Cheong (“Liu”) who worked temporarily for them as a driver while the company was moving or “restructuring” in the month or so before the seizure.  On the day of her arrest, she had spoken on the telephone with Liu at about 6 pm about Luk’s car as she wanted to use it and she was waiting in the flat for him to bring her the car keys.  

10.Actually it was not until an interview instigated by the Applicant in December 2007 some two months after her arrest that she revealed Liu’s existence, having elected to remain silent at earlier police interviews and notwithstanding the visit made to her at the police station of lawyers said to be sent by him very shortly after her arrest.  At the December interview the Applicant suggested that Liu was implicated as he had told her one or two months before that he had been fined for possessing cannabis, he had not turned up for work after her arrest and two notebooks said to be in his handwriting containing names and figures were said to have been found in Luk’s car soon after the event.  Those notebooks were then turned over to the police.

11.At the trial, there was evidence that Liu’s fingerprints were found in the kitchen, that he had been arrested for possession of ‘Ice’ in May the year after the Applicant’s arrest and that he was subsequently convicted.

Principles

12.Mr Marash SC only advanced one argument on appeal, that of lurking doubt.  He referred us to the judgment of this court (Stuart-Moore V-P, Yeung and Hartmann JJA) in HKSAR v Cheung Mei Ching Tina CACC349/2007 (unrep) 29 April 2009 where the defendant entered Hong Kong with dangerous drugs in her bag after a trip to the mainland with her boyfriend Yip.  Yip later surrendered to the authorities and confessed that he had placed the dangerous drugs in the defendant’s bag without her knowledge or consent.  There was also evidence from the tour guide implicating Yip.  The jury nevertheless convicted the defendant.  On appeal the court held:

“37.   There is no doubt that a prima facie case was established and that she was caught in highly suspicious circumstances.  Nevertheless when put at its highest, there was, in our opinion, no single point, standing alone or in combination with others, which could be said to establish an irresistible inference of guilt.

38. We have come to the conclusion, in spite of the jury’s verdict, that this was one of those rare and exceptional cases in which, although properly left to the jury, a distinct feeling of unease is left behind as to the correctness of this verdict.  The position in which we now find ourselves was also encountered in R v Cooper [1969] 53 Cr App R 82 at 85-86 where the English Court of Appeal was faced with a similar situation.  Lord Widgery LJ, when giving judgment, said:

“The important thing about this case is that all the material to which I have referred was put before the jury. No one criticises the summing-up, and, indeed, Mr. Frisby for the appellant has gone to some lengths to indicate that the summing-up was entirely fair and that everything which could possibly have been said in order to alert the jury to the difficulties of the case was clearly said by the presiding judge. It is, therefore, a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this Court would be very reluctant indeed to intervene. It has been said over and over again throughout the years that this Court must recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the material was before the jury and the summing-up was impeccable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 - provisions which are now to be found in section 2 of the Criminal Appeal Act 1968 - it was almost unheard of for this Court to interfere in such a case. 

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it”.

39. Similarly in Hong Kong, pursuant to section 83 of the Criminal Procedure Ordinance, this court is duty-bound to allow an appeal against conviction if it thinks that “the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory...”. In a highly unusual development in this case, Yip had not only given himself up as the guilty culprit, he had also pleaded guilty and provided positive evidence that he had not told the appellant what he had done.  There was nothing in any of the evidence called by the prosecution, other than the bare fact that the appellant was carrying the drugs, which gave rise to any suspicion against her or which pointed to her knowledge that she was in possession of the ketamine.  The appellant had a perfectly valid reason for travelling to the Mainland and back and there is no doubt that she had been in the company of Yip as to whom there was no reason for her to have known or suspected, after living with him for four years, that he would embark on a drug trafficking venture”.

This case

13.In our view that was a completely different case from the present and applying the principles set out in Cooper, we have no lurking doubts regarding the Applicant’s conviction.

14.Here when the Applicant was found leaving or inside the flat (it does not matter which), there were dangerous drugs openly visible on the counter in the kitchen, which had no door.  The rest of the dangerous drugs were stored in four other places in the kitchen, in containers which the Applicant admitted belonged to the company.  It beggars belief that $74,000 worth of dangerous drugs would be left unguarded in a small flat which the Applicant on her own admission frequently used, and placed in various places in easy reach, in unsecured containers belonging to the company, without the Applicant being complicit in the storage.  Mr Marash suggested that it may have been possible that Liu had taken the drugs there and had to rush off without being able to put them all away.  In our view it is inconceivable in those circumstances that if the Applicant were innocent, Liu would have left her, his employer, in the flat with the drugs on open display for the 1½ hours between 6 pm and 7:30 pm making no  attempt to get her to leave, and yet the Applicant’s evidence was exactly to that effect. 

15.In our view, the jury was perfectly entitled on the evidence to convict the Applicant and the conviction was not unsafe or unsatisfactory.  Accordingly we dismissed the application for leave.  Somewhat surprisingly the Department of Justice did not ask for costs of the application and so we made no order.

Mr Daniel Marash SC and Mr Albert Cheung instructed by Peter Mo & Co for the Applicant

Miss Vinci Lam SPP of the Department of Justice for the Respondent  

Applicant's leave to appeal to Court of Final Appeal refused by Court of Final Appeal. Please refer to FAMC39/2010 dated 23 November 2010