HKSAR v. Ko Sai Po and Another

CACC 543/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 543 OF 2011

(ON APPEAL FROM HCCC NO 123 OF 2011)

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Hon Barnes J (giving the Reasons for Judgment of the court):

INTRODUCTION

1.Ko Sai Po (the 1^st applicant) and Azanero Huaccha Pabel (the 2^nd applicant) were jointly charged with one count of manufacture of a dangerous drug (1^st count) and one count of trafficking in a dangerous drug (2^nd count), contrary respectively to section 6(1)(a) and (2) and section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

2.The particulars of the 1^st count were that the two applicants on or about 24 September 2010 at Flat A, 5^th Floor, No 105 Jervois Street, Sheung Wan, in Hong Kong, unlawfully manufactured a dangerous drug, namely cocaine.

3.The particulars of the 2^nd count were that at the same time and place, the two applicants unlawfully trafficked in a dangerous drug, namely, 7,213.91 grammes of plastic fragments and a powder containing 1,340.95 grammes of cocaine.

4.Both applicants pleaded not guilty and were convicted of both counts after trial on 14 December 2011 before Deputy High Court Judge E Toh (as she then was).  They were each sentenced — on 15 December 2011 — to 25 years and 24 years imprisonment for the 1^st and 2^nd count respectively.

5.On 30 December 2011, the 1^st applicant applied for leave to appeal against conviction.  On 9 January 2012, the 2^nd applicant applied for leave to appeal against sentence.  On 11 July 2012, the 2^nd applicant also applied for leave to appeal against conviction out of time.  Both applicants were originally represented by Mr Paul Loughran of counsel on the instruction of the Director of Legal Aid and the hearing was set down on 11 December 2012.  Four days prior to the said hearing Mr Loughran informed the court that he could no longer argue the single perfected ground of appeal filed.  On 10 December 2012 (one day before the scheduled hearing), the 2^nd applicant filed his Notice of Abandonment.

6.On 11 December 2012, upon the application of the 1^st applicant, both applicants’ applications were adjourned to a date to be fixed in view of the turn of the events.

7.Both applicants, acting in person, continued their application at the renewed hearing on 20 June 2013 before us.

8.At the conclusion of the hearing we dismissed their respective application.  We indicated we would hand down our reasons in due course, which we now do.

PROSECUTION CASE

9.It was an admitted fact that the 1^st applicant and his wife occupied the premises specified in both counts at all material time.  It was also an admitted fact that the 2^nd applicant was a Peruvian who arrived in Hong Kong on 23 September 2010.  The 1^st applicant, together with another Chinese male, picked up the 2^nd applicant at the airport and brought him back to the premises.

10.The prosecution case was that the 1^st applicant arranged for his wife to stay at a guest house at the material time.  The 1^st applicant bought chemicals necessary for the manufacture of cocaine (kerosene and acetone) from a shop, using a false name.  The 1^st applicant was observed to have collected two blue bags in Sheung Shui.  Blue bags similar to those collected by the 1^st applicant were found to contain plastic dolls which were made of a mixture of plastic and cocaine.  The 1^st applicant’s wife also bought a 15‑inch metal saw and several saw blades and brought them to the building of the premises.

11.On 24 September 2010, police officers used keys found on the 1^st applicant to gain access to the premises. The main door was locked from the inside and the police had to break in.  The 2^nd applicant was found sitting on a mattress inside.  The cocaine particularized in 2^nd count was found scattered inside the premises.  The street value of the cocaine was HK$1.7 million.  Chemical and equipment for the manufacture of dangerous drug, and fragments of cut‑up dolls were found inside the premises.  Indeed according to the expert evidence of a forensic chemist Dr Ng, the cutting up of the dolls made their dissolution in a solvent, such as kerosene, quicker so as to extract the cocaine.  It was her expert opinion that the premises were used for the extraction and purification of cocaine.

12.The 2^nd applicant voluntarily attended a video recorded interview after his arrest.  He said he was a farmer and that he had come to Hong Kong as a chemist to process basic cocaine paste (which he claimed was permitted in Peru) for a reward of US$700.  He also admitted having used a saw to cut the doll into pieces to do the extraction.

13.It was the prosecution case that both applicants, acting jointly, manufactured cocaine and were also jointly trafficking in the cocaine found in the premises.

DEFENCE CASE

14.The 1^st applicant gave evidence. Basically he denied knowledge of cocaine being manufactured in the premises he occupied.  He befriended someone called “Fan Lan Di” and he agreed for this friend to use his premises to carry out some kind of experiment.  For this reason he arranged for his wife to stay at a guest house.  He bought the chemicals on the instruction of his friend.  He did not give his real name as it was his practice not to tell strangers his real name.  He went to pick up the 2^nd applicant with his friend on 23 September and the 2^nd applicant was to do the experiment with his friend.  He saw his friend and the 2^nd applicant engaged in the cutting up of the dolls.  His friend left on 23 September and the 2^nd applicant stayed at the premises.  On 24 September, the 2^nd applicant continued to saw the dolls.  He told his wife to buy a new saw and blades as the blades had broken.

15.The 2^nd applicant also gave evidence.  He said he was a farmer from Peru and he had come to Hong Kong to work as a restaurant worker.  He said he knew nothing about cocaine manufacturing.  It would appear that he denied he had come as a Chemist though that was what he had said during the video recorded interview.  The 2^nd applicant said he went to the 1^st applicant’s premises on 23 September and nothing happened on that day.  On 24 September, he saw the 1^st applicant cutting up dolls and he helped to cut one up.  He did not know they were cocaine.  He said he lied about his role to the police during the video recorded interview.

GROUNDS OF APPEAL

The 1^st applicant

16.The 1^st applicant raised a number of home‑made grounds.  The 1^st applicant submitted that:

(1) There was no evidence to prove that he had committed the offences on purpose.

(2) There was no evidence that he controlled or was in possession of the dangerous drug.

(3) The 2^nd applicant’s evidence was inconsistent and had fabricated evidence against him.

(4) The jury did not understand the judge’s direction correctly.

(5) The 2^nd applicant made every effort to protect the “planner behind the scene” during the video recorded interview and had fabricated evidence against him, there was a reasonable doubt in his favour.

(6) His defence of having no knowledge of the dangerous drug had not been reflected during the trial.

The 1^st applicant also complained that the jury carried out their duties in a perfunctory manner, in that they reached their verdict within 10 minutes after they had taken 7 hours 5 minutes to deliberate without reaching any decision.

17.As to the last matter, upon learning from Mr Eddie Sean, SADPP of the Department of Justice for the respondent, that there was no question from the jury nor any further direction to the jury by the judge before the jury returned its verdicts, the 1^st applicant clarified that the 10 minutes he referred to was the “waiting time” he spent in court after he was taken up by the staff of the Correctional Services Department to await the verdict.

18.Apart from the written grounds, the 1^st applicant also raised the following grounds orally:

(7) The prosecution wrongfully withheld evidence by failing to produce the saw, which would surely have had the fingerprints and DNA of the 2^nd applicant on it but none of his.

(8) The expert gave an incomplete answer in relation to the possibility of DNA being left on the blades found in the premises, which in turn had an adverse effect on the 1^st applicant in the judgment of the judge and the jury since cutting so many dolls with blades — without a saw— would surely have resulted in injuries to the hand.

(9) The police officer who gave evidence of surveillance perverted the course of public justice and lied to say that the 1^st applicant had taken bus number A21 to the airport when he had taken bus number A11, the officer’s evidence in court also differed from his statement.

(10) The judge failed to direct the jury that they could not use the “statement” of a co‑accused to convict him.

(11) The video containing the video recorded interview of the 2^nd applicant was taken back from the jury on the basis that it contained parts that had been deleted, which were the entry and exit records of the 2^nd applicant into and from Hong Kong in August and September 2010.  The deletion resulted in the 2^nd applicant giving conflicting evidence in court, which was to the advantage of the 1^st applicant, yet the judge directed the jury that the 2^nd applicant “may be telling the truth”.

(12) The judge’s direction to the jury to the effect that people who spoke well may not be telling the truth, and people who did not speak well may well be “negative the judge’s judgment according to the evidence”.

(13) Finally, the 1^st applicant asked this court to investigate into two pieces of exhibits (nos CDU14740 and 14741), which were two pieces of blades, in order to prove some strange situation in this case.

The 2^nd applicant

19.The 2^nd applicant, in his home‑made grounds of appeal, basically said he did not plead guilty as a result of his friend’s bad advice.  He asked for leniency so that he could start a new life, citing family hardship and financial difficulties.

20.As to the application being made out of time, the 2^nd applicant explained in the supporting affirmation that since he did not understand English or Chinese, he relied upon a prison mate and wrongly applied for leave to appeal against sentence.  After his prison mate had advised him, he then applied to appeal against conviction.

21.In court, the 2^nd applicant confirmed that his stance was that he was wrong to have committed the offence.  He should have pleaded guilty.  He asked this court to give him a chance and reduce the sentence.

A CONSIDERATION OF THE SUBMISSIONS

22.We have read the judge’s very detailed and comprehensive summing up.  We do not see any fault in the way she directed the jury.  There was of course no requirement for the prosecution to prove that the 1^st applicant had any motive or purpose to commit the offences. The judge had correctly set out the respective elements the prosecution had to prove against each applicant in respect of the two counts they faced.  The judge reminded the jury that the prosecution must prove, against each applicant, that he knew there was the dangerous drug cocaine inside the two plastic bags found inside the premises — merely suspicion was not enough.  The judge clearly directed the jury how to deal with circumstantial evidence and previous inconsistent statement of a witness.  She had alsoclearly set out the respective cases of the 1^st and 2^nd applicant, in particular the nature of a so‑called “cut‑throat defence” and had properly directed the jury on how to deal with such a cut-throat defence.  There were absolutely no merits in any of the complaints raised by the 1^st applicant. His application was therefore dismissed.

23.In relation to the 2^nd applicant, his complaint that he was led to plead not guilty as a result of the wrong advice of a friend is hardly a ground of appeal against conviction — particularly when he testified before the jury, on oath, that he knew nothing about what was going on in the premises and that the 1^st applicant had lied about him having anything to do with the cutting of the dolls.

24.Whilst we appreciated that as a foreign national who did not understand either Chinese or English, the 2^nd applicant had to rely on others to render assistance, the fact remained that he did lodge his application in time (in January 2012)for leave to appeal against sentence and the grounds given in support were clearly for a reduction of the sentence, not on conviction.  It was hard to understand why it had taken him another 6 months before he lodged the application to appeal against conviction out of time (in July 2012).  Needless to say, if there had been any merits in his grounds of appeal, this court would not have shut out a substantial arguable ground of appeal by refusing leave.  However, since there was absolutely no merit in the grounds advanced by the 2^nd applicant, we also refused his application to leave to appeal against conviction out of time.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The 1^st and 2^nd applicant appeared in person