HKSAR v. Yeung Wai Kuen

CACC 125/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 125 OF 2010

(ON APPEAL FROM DCCC 1019 OF 2009)

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BETWEEN

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Before: Hon Yeung JA，Yuen JA and Wright J

Date of Hearing: 8 December 2010

Date of Judgment: 8 December 2010

Date of Reasons for Judgment :20 December 2010

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REASONS FOR JUDGMENT

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

Introduction

1.Shortly after 2 a.m. on 24 July 2009, police officers arrested five men and three women, including Li Chak-hang (“Li”), Wong Sze-lam (“Wong”) and Yeung Wai-kuen (“the applicant”), inside Room 14 of Neway Karaoke after seizing therein substantial quantities of ketamine and a small quantity of cocaine.

2.On a table, there were one rolled up $20 note with traces of ketamine, one folded $20 note containing 0.12 g of a powder containing 0.09 g of ketamine, one rolled up $100 note with traces of cocaine and ketamine, and one folded $20 note containing traces of ketamine. One plastic bag of 13.35 g of a powder containing 10.97 g of ketamine and four plastic bags of suspected cocaine were found inside the left front pocket of Li.

3.During the search, Wong threw two plastic bags of 3.84 g of a powder containing 3.27 g of ketamine onto the floor.

4.Li admitted that the dangerous drugs found on his person belonged to him; that the cocaine was for his own consumption and that the ketamine was to be shared with his friends. Li admitted that the drugs found on the table also belonged to him, to be shared amongst his friends and that he had asked Wong, his girlfriend, to keep the dangerous drugs that she had thrown onto the floor.

5.The prosecution alleged that the applicant had, under caution, confessed that on Li’s instruction, he had called up “Chau Yeh” to deliver $200 worth of ketamine and “half a piece” of ketamine (about 14 g) to the Neway Karaoke for his friends’ consumption, and that when the drugs and half a piece of “k” arrived, Li had played around with them before distributing them to others.

6.Li, Wong and the applicant appeared before Judge D Yau in the District Court on an indictment consisting of the 1^st charge (against Li and the applicant) of trafficking in the ketamine found on the table and inside Li’s front pocket, the 2^nd charge (against Li) of possession of a small quantity of cocaine, and the 3^rd charge (against Wong) of possession of the two plastic bags of ketamine that she threw onto the floor.

7.Li pleaded guilty to the 1^st and 2^nd charges, and Wong pleaded guilty to the 3^rd charge. The applicant pleaded not guilty to the 1^st charge, but was convicted after trial and sentenced to 45 months’ imprisonment.

8.The applicant, represented by Mr Andrew Bruce SC and Mr Richard Donald, sought leave to appeal against conviction. At the end of the hearing, we dismissed the application and indicated that we would hand down our reasons and this we now do.

The Evidence

9.The prosecution evidence relating to the seizure of the dangerous drugs was admitted. The other incriminating evidence against the applicant was his confession under caution.

10.According to the police, on being arrested and cautioned, the applicant said: “I sang karaoke (songs) here. My friends asked me to get ‘K’ for sniffing. I then phoned ‘Chau Yeh’ and then got 200 dollars and half a piece of ‘K’ to the room, for them to sniff”.

11.After the applicant was taken back to the Mongkok Police Station, he was questioned again in connection with the confession that he had earlier made. The applicant said the friends he mentioned earlier were Chan Yeung-pan and Li.  He also said he got to know “Chau Yeh” at a cyber café and could contact him by his telephone number 51093380.

12.The applicant said he did not have “Chau Yeh”’s full name, but was able to describe him to the police. The applicant further said “Chau Yeh” arrived at the karaoke at around 1.50 a.m. to give the ketamine to Li before collecting $950 from him. The applicant said “Chau Yeh” knew Li as well and after obtaining the ketamine, Li started to distribute it to the people in the room for consumption. The applicant further said a $200 portion ketamine was about 1 g and that a half-piece was 14 g.

13.The applicant claimed not to be a drug dependant and that he was just helping Li and Chan Yeung-pan to arrange for “Chau Yeh” to take the ketamine there. He also said it was Li who paid the money to “Chau Yeh” and that although he had made arrangement for the supply of the ketamine, he received no money.

14.On 28 August 2009, the applicant attended the Kowloon West Police Regional Headquarters for a further interview. The applicant told the officer that the $200 ketamine delivered by “Chau Yeh” was a small packet of about 1g kept in a pill bag and the half-piece ketamine of about 14 g delivered by “Chau Yeh” was also kept in a pill bag.

15.The applicant reiterated that it was Li who paid for the ketamine and confirmed that the ketamine seized by the police were those delivered by “Chau Yeh”. The applicant said the ketamine belonged to Li and Chan Yeung-pan as they had paid for them and that he just helped them to ask “Chau Yeh” to carry the drugs up to Neway Karaoke.

The Defence Case

16.The applicant objected to the admission of his confession as evidence, saying that he had never been cautioned at the scene. The applicant further alleged, that subsequent to his arrest, he, together with Chan Yeung-pan, had a meeting with three police officers and they were told to call up drug dealers to order drugs so that the police could arrest them. When they refused, the police suggested supplying the applicant with drugs so that he could contact buyers to sell to them whereupon the police would arrest the buyers. Again the applicant and Chan Yeung-pan refused to co-operate.

17.The police officers only confirmed that there was a meeting between the applicant, Chan Yeung-pan and two police officers on 11 August 2009 when the applicant and Chan Yeung-pan provided information as to the time and place of the operation of some drug dealers.

18.The applicant did not give evidence after the judge admitted his confession as evidence. He, however, called Li to give evidence in his defence.

19.Li said that on the night in question, he had asked the applicant to make a phone call to “Chau Yeh” as he did not have his telephone number. Li suggested that the applicant only dialed a number before handing over the telephone for him to talk to “Chau Yeh” to order the drugs. Li said the applicant did not talk to “Chau Yeh” on the telephone at all.

20.Li admitted that having talked to “Chau Yeh”, he told the applicant that “the stuff had been obtained” and that ‘‘‘Chau Yeh’ would come up”.

21.The applicant’s case was that he had not touched any of the dangerous drugs that “Chau Yeh” had later delivered; that he had not dealt with the drugs and was never in possession of it for the purpose of trafficking.

The Judge’s Findings

22.The judge found that the applicant and Li were trafficking in the ketamine together, playing different roles. The judge found that “on the night in question, (Li) asked (the applicant) to call up “Chau Yeh” to obtain some ketamine for sniffing. (The applicant) then used his own mobile phone to call up this “Chau Yeh” and asked him to deliver $200’s worth and 14g of ketamine to the room for his friends’ consumption. The drugs were later delivered to the room by that “Chau Yeh” and (Li) paid for the drugs. (Li) then played around with the drugs and then proceeded to distribute them to those in the room for consumption”.

23.The judge concluded that when the applicant ordered the drugs from “Chau Yeh”, he knew that the drugs would be shared among those in the room and that Li would pay for them. The judge concluded that the applicant and Li were together trafficking in the dangerous drug and he therefore convicted the applicant of the 1^st charge.

Grounds of Appeal

24.Mr Bruce SC suggested that the judge had not resolved the conflict of whether it was the applicant or Li who had ordered the drugs from “Chau Yeh”, and if the judge had resolved the conflict, the judge did not say why he accepted that it was the applicant who had ordered the drugs.

25.Mr Bruce SC also suggested that the judge was wrong to have concluded that the applicant was in a joint enterprise with Li to traffic in the dangerous drugs and therefore the conviction against the applicant was unsafe or unsatisfactory.

Discussion

26.The applicant claimed not to be a drug addict, yet he was found together with seven others in a karaoke room with substantial quantities of ketamine lying on the table.

27.The applicant admitted knowledge of the nature of the drugs and was clearly aware of their existence. He was also aware of the nature of the gathering at the Neway Karaoke.

28.The applicant confessed that he had telephoned “Chau Yeh” for a $200 packet and half a piece of ketamine for consumption by the others. The applicant said that he was just helping Li and Chan Yeung-pan to order the drugs from “Chau Yeh”.

29.Li said in his evidence that the applicant only dialed “Chau Yeh’’’s telephone number for him and had not himself spoken to “Chau Yeh”. Clearly the judge did not accept Li’s evidence when in his Reasons for Verdict, the judge said: “On the night in question, (Li) asked (the applicant) to call up ‘Chau Yeh’ to obtain some ketamine for sniffing. (The applicant) then used his own mobile phone to call up this ‘Chau Yeh’ character and asked him to deliver $200’s worth and 14g of ketamine to the room for his friends’ consumption” and “…(the applicant) knew when he ordered the drugs from ‘Chau Yeh’ that it was going to be shared among those in the room”.

30.This is a simple case. The judge had accepted what the applicant told the police to be true. The judge, in relation to the applicant’s confession, made the following findings:

“I find that what (the applicant) told (the police) in the 1^st cautioned interview in relation to how he was told by (Li) and Chan Yeung Pan that they wanted ketamine was true. When (the applicant) heard that they wanted the drugs, he then called ‘Chau Yeh’ the supplier. He told ‘Chau Yeh’ what and how much he wanted, who later delivered the drugs to the room as a result of (the applicant’s) phone call and he delivered drugs were then distributed to those present in the room for consumption. Given the layout of the room and how the dangerous drugs were openly spread out on the table in the room when police entered, it must be an irresistible inference that (the applicant) knew that the dangerous drugs were being consumed.”

31.Li’s evidence, in so far as he suggested that the applicant had not spoken to “Chau Yeh” and therefore did not directly order the ketamine from him, contradicted the applicant’s admission that the judge had accepted. Li’s evidence also contradicted the facts he admitted in his own case.

32.Clearly the judge had rejected Li’s evidence because he had accepted the veracity of the applicant’s confession. The judge was entitled to do so and on such simple conflict, it was not incumbent upon the judge to further elaborate as to why he had rejected Li’s evidence. In the context of the present case, the requirement of giving adequate reasons for a decision was met. That was sufficient to dispose of the appeal.

33.In any event, whether the applicant in fact directly ordered the drugs from “Chau Yeh” on the phone hardly made any difference. The applicant knew that the purpose of the gathering at the Neway Karaoke was for people to sniff ketamine. He knew that Li organized the gathering and would obtain the supply of ketamine from “Chau Yeh” to be shared amongst “friends”. The applicant knew that “Chau Yeh” was a drug supplier.

34.When he made the call to “Chau Yeh” on behalf of Li, he must have realized that Li would be getting the supply of ketamine from “Chau Yeh”. The applicant admitted that he was helping Li to arrange for “Chau Yeh” to take the ketamine there. Indeed, according to Li, having spoken to “Chau Yeh” on the phone, he told the applicant that “the stuff had been obtained” and that “‘Chau Yeh’ would come up.”

35.When “Chau Yeh” arrived with the drugs, the applicant witnessed Li paying for them before they were distributed for consumption.

36.On such evidence, the inescapable inference or conclusion was that the applicant was acting in concert with Li in drug trafficking when the applicant chose not to give evidence to explain, contradict or undermine the prosecution case against him.

37.This was a case of the applicant and Li jointly trafficking in a dangerous drug, each playing a different role. They were together in Room 14 when their “friends” were taking or trying to take the ketamine that they had provided and made available. In the end, it mattered not if the applicant had directly or personally ordered the ketamine from “Chau Yeh” .

38.The conviction against the applicant was perfectly safe and satisfactory. The application for leave to appeal against conviction was therefore dismissed.

Mr William Tam, SADPP of the Department of Justice for the Respondent.

Mr Andrew Bruce, SC and Mr Richard Donald instructed by Messrs Francis Kong & Co for the Applicant.