HKSAR v. Hau Chau Shing

CACC 142/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 142 OF 2012

(ON APPEAL FROM HCCC 9/2011)

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REASONS FOR JUDGMENT

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Hon D Pang J (giving the reasons for judgment of the court):

1.On 30 March 2012, after trial before Macrae J and a jury, the Applicant was convicted of one count of ‘trafficking in a dangerous drug’ involving 3,851 grammes of methamphetamine hydrochloride by pure narcotic content. He was sentenced to 21 years’ imprisonment. The Applicant sought leave to appeal his against conviction in person. On 26 July 2013, we dismissed the appeal and said that we would give reasons. This we do now.

PROSECUTION CASE

2.Immigration records show the following – at 7 pm on 3 July 2010, the Applicant left for the Mainland; at 7:45 am the following day (July 4), he returned to Hong Kong.  About an hour later, the Applicant was seen checking in for Flight PR 301 to Manila at the Hong Kong International Airport.  Finding him suspicious, plainclothes Customs officers on routine surveillance retrieved his luggage for an X‑ray examination.  The result necessitated a deployment at the departure gate where, at boarding time, the Applicant did turn up and was taken away to first, identify his suitcase and second, unlock it for inspection.  As a result, a secret compartment concealing six plastic bags of suspected dangerous drugs was uncovered.  The Applicant was arrested (11:45 am) but under caution denied knowing what the white crystalline substance was.  He was taken to the Customs airport office (Room 5T024) where two mobile phones, five SIM cards and HK$839 and RMB978 were seized from him.  Other enquiries including a house search at the Applicant’s home followed.  (There was a record of interview between 5:30 pm and 8:30 pm but it was ruled inadmissible.)  The drugs were later confirmed to be HK$2.87M’s worth of ICE at street value.

DEFENCE CASE

3.The Applicant was aged 58 and a cook.  He had a Filipino friend called Tan.  For months after the Applicant’s stroke in 2009, Tan had suggested that he should have a change of scene and seek work in the Philippines.  It was for that purpose that he had left Hong Kong on 3 July 2010 – to meet up with Tan in Shenzhen to follow up on a job that had become available.  That was the plan.

4.In the event, the Applicant did not see Tan but was contacted by one of Tan’s associates (“Ah B”).  This took place on the morning of 4 July 2010.  For the ensuing trip to the Philippines, the Applicant was asked to bring along some clothing.  That clothing he was to put inside what Ah B said was Tan’s half-empty suitcase.  Given a ticket, the Applicant was also asked to ride back alone to Hong Kong in a car that would take him directly to the airport.  As he had met Ah B previously when, like now, he was asked to take a suitcase to Tan across the border, the Applicant was un-averse to those suggestions.

5.Tan was late in coming to the airport and in his place, sent his cousin (“Ah Sing”) to help the Applicant check in.  (The Applicant had not travelled by air for 20 to 30 years.)  As a matter of fact, Tan did not turn up until it was boarding time and only at the departure gate.  Even then, Tan prodded the Applicant to get on the plane ahead of him, which ended up in the latter’s interception.

6.At Room 5T024, the Appellant wasted no time in telling the officers about Tan and his offer of work in the Philippines.  He pleaded with them to check the airport CCTV for Ah Sing and Tan to confirm his account.  His request however fell on deaf ears, and it was much later in the evening that he was allowed to contact his wife and told her to find about Tan’s address. 

7.In time, the Applicant’s wife did come up with the relevant information which the Applicant passed on to Customs officers on 28 July 2010.  Whilst awaiting trial in prison, a stranger (Law Ka‑hung) had come to visit.  By his own admission, Law was an agent of Tan and was there to discuss the arrangement of a private lawyer (Lee Po‑wing).  This was declined by the Applicant who maintained his innocence and who did not want to have anything more to do with Tan.

GROUNDS OF APPEAL

8.Apart from Form XI (the original notice of this application), the Applicant has filed into court 16 letters complaining about his conviction.  Their contents are repetitive.  They can be grouped and summarized under the following five headings.

i)    Customs officers were ambiguous and misleading

9.When PW3 (Customs Officer 98333) intercepted the Applicant at the departure gate, the first thing he asked was if the Applicant was alone.  Likewise, when the Applicant was asked to identify the suitcase, the simple question posed to him was if the suitcase was his.  In between, the Applicant was given to understand that it could be a false alarm.

10.The complaint here is that if PW3 had been less terse and more forthcoming, the Applicant would have known what information to give regarding Tan, Ah Sing and the provenance of the suitcase.  As it is, having come to the airport on his own and docketing the suitcase under his name, his answer to both PW3’s questions was a simple “yes”. That, the jury may have found, was inconsistent with the Applicant’s account.

ii)   There was actual impropriety in the investigation

11.Shortly after his arrest, the Applicant was already telling the Customs officers about Tan and the job in the Philippines. Had they been fair to him, they would have heeded his request to view the airport CCTV and/or secured Tan’s arrest.  As it is, the officers disregarded their duty – possibly deliberately.  PW3, in particular, had prevaricated by saying that all matters concerning the CCTV were under the purview of the Airport Authority and that video images were invariably unclear.  The damage that this caused to the Applicant was irreversible in that CCTV records from the airport were kept for no longer than a month so by the time the matter came to trial, there was no more. 

iii)  Customs officers were unprepared to tell the truth in court

12.To add insult to injury, the Customs officers lied.  PW3, for example, denied knowing anything about the job in the Philippines, only to be contradicted by PW2 (Customs Officer 99105) who said he heard the Applicant mention it in the Customs airport office.  PW2 and PW3 were also inconsistent on whether the Applicant asked to use the telephone in Room 5T024.

13.The above examples go to the core of the Applicant’s defence.  There are other more peripheral ones that go to credibility.  The long lapse of time between first spotting a problem with the X-ray machine and the Applicant’s final interception at the boarding gate also raises questions.  They expose all the Customs officers involved in the case as unreliable.

14.This includes PW1 (Senior Inspector Wong) who had explained to the jury why he thought the Applicant was suspicious, hence giving the order to retrieve his suitcase for examination.  He said the Applicant had traversed three airline counters before managing to check in his luggage whereas, in fact, the Applicant was in the company of Ah Sing and was done with his check-in in one.

15.Without the support of anything from the CCTV, PW1’s account will remain un-contradicted by independent evidence.  This cannot be helped.  But the Customs officers had been shown to be unreliable so PW1’s evidence on this point also should not be given credence.

iv)  There was independent support for the Applicant’s account

16.It was an admitted fact in the trial that Filipino male “Tan Leonico” was a passenger on Flight PR301.  It was an admitted fact that the Applicant did mention someone called Tan on the day of his arrest (time unspecified).[1]  It was an admitted fact that “Tan Leonico” once lived in an address that the Applicant disclosed on 28 July 2010.    It was an admitted fact that Law Ka-hung and Lee Po-wing had both visited the Applicant in prison.

v)   Both counsel and the judge presented the defence case inadequately

17.The Applicant submits that both his lawyer and the judge were insufficiently forceful in presenting his case before the jury.

DISCUSSION

18.Obviously, the learned trial judge was discriminate in his treatment of the evidence.  It was never the duty of any judge to deal with everything irrespective of their merits.  The considerable time that the Customs officers had taken to stop the Applicant is an example of why a certain topic can be left uncanvassed.  It has no immediate relevance to the issue on trial so what the judge did – that is, to summarize PW1’s evidence which, on a fair reading, does explain the impracticability of instant interception – was adequate.

19.Apropos the more pertinent issues, the judge was demonstrably comprehensive.  The following is what he said on the alleged ambiguity of PW3’s first approach to the Applicant.  It gave expression to the Applicant’s complaint whilst leaving the matter to the jury:

“It was this witness [PW3] who spoke to the defendant when he came forward as the result of a broadcast asking him to make himself known to the airline staff. The witness confirmed the defendant’s name and asked him if he was alone. He said ‘yes’. You may remember it was later clarified with the witness as to what exact words he had used to the defendant, what he intended to ask him and what he understood he was being told. It is a matter for you whether you think there is any ambiguity or misunderstanding in either the question or the answer. The witness said he was trying to confirm whether the defendant was travelling together with anyone. The witness then told the defendant that there was some problem with his luggage and that he would like to take him down for an inspection of the suitcase. He said the defendant was willing to follow him. When they arrived under the air-bridge of gate number 17, PW2 and an airline staff were already there with the suitcase. The witness asked the defendant if the suitcase was his. The defendant looked at it and said ‘yes’. He said he then asked the defendant to open the suitcase for cross-examination, whereupon the defendant turned the dials so that the combination lock was 000, and it was opened.”

20.Likewise, his treatment of the topic of Tan. Minutes into his summing up, the judge was already reminding the jury of it:

“I have just told you what the ultimate issue in this case is. There is, of course, evidence, some of which is disputed, which may or may not help you on that issue. For example, the defence rely on the existence of Leoncio Tan and his presence on the flight in question to suggest that the defendant may have been used unwittingly by Tan to carry these drugs from Hong Kong to the Philippines.

The prosecution cannot really dispute the existence of Leoncio Tan or his presence on the flight ….

There is also, for example, the evidence of the defendant being visited by somebody called Law Ka-hung and a lawyer instructed by him.”

21.Next, we see the judge impressing upon the jury the parties’ respective positions – Tan being the knowing escort, and the Applicant the unsuspecting courier, in the defence case theory:

“The prosecution have produced direct evidence that the retail value of the drugs in question was over $2.8 million and the prosecution would ask you to infer from that fact that professional drug traffickers would not risk entrusting drugs of this quantity and value to an innocent outsider who did not know what he was carrying. What would happen, for example, if the defendant discovered the drugs or if he simply decided to repack the contents of the bag he had been asked to carry into something lighter and abandon the suitcase, not realising the value of its cargo? Or at the check-in counter, if he blurted out to the check-in personnel that the suitcase was not in fact his and that he was carrying it on somebody else’s behalf?

On the other hand, Mr So, for the defence, says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw. Another inference one might reasonably draw is that whoever financed this operation …. would much prefer to trick a simpleminded and perhaps unsophisticated person into carrying a suitcase full of drugs because not only would it lessen the risks of them having to do it themselves but it had the added benefit of being cheap, since anybody who knew what they were carrying would demand a large fee or reward because of the risks involved. He would also point to the presence on the same flight of someone who would be watching at a safe distance to ensure that the defendant successfully did what he had been asked to do.

The prosecution would also ask you to infer from the fact that the defendant took so few personal belongings and money along with him that he cannot really have been intending to go to the Philippines in the expectation of staying there to work.

The defence, however, say that this was a relatively unsophisticated man who had never been in any real trouble in his life and who has hardly ever travelled outside Hong Kong before by air, who was suddenly, at short notice, provided with a free ticket to the Philippines to see if there was any work that he might be able to do there.  The clothes and money he took were sufficient for that purpose and any questioning in his own mind as to why he was being treated so generously and any lack of preparation on his part would have been overborne by the excitement of being offered a trip to a foreign country for the first time in 20 to 30 years.”

22.Then, on the specific topic of what the Applicant may or may not have said shortly after his arrest, i.e. whether he had in fact remonstrated with Customs officers about the airport CCTV etc, the judge pointed out that:

“…. certain questions were asked of the prosecution witnesses by [the prosecutor]in order to establish that, after his arrest, the defendant did not say anything about the offence which they considered was worth passing on to their inspector.

Members of the jury, it is clear from the evidence of PW2 that the defendant did say certain things in relation to himself and the offence and you might think - and indeed, I think [the prosecutor] has acknowledged that this morning - that there is a slight inconsistency between PW2’s and PW3’s evidence as to the extent of what the defendant said.” 

23.To understand what this inconsistency was between PW2 and PW3, one has to look at the evidence.  This the judge had recounted in some detail, including the Applicant’s.  In the end, it was for the jury to decide who was or were to be believed on the facts.  Beginning with PW2:

“In cross-examination, [PW2] agreed that …. from the time he saw the defendant under the air-bridge of gate number 17 [shortly before 11:45 am] until about 3.30 pm when the defendant was taken away by other officers for a house search, he was in the company of the defendant ….

He said that during that time, as far as he could recall, he did not hear the defendant talk about a Mr Tan. He also remembered the defendant being asked why he had come to the airport and the defendant saying that he was going to the Philippines to work. He had no recollection of the defendant saying that a ticket had been provided to him, nor did he remember any conversation in which the defendant talked about going to Shenzhen, or waiting for Mr Tan, or explaining the journey by which he had arrived at the airport. However, he did hear him say that he had had a stroke and both under the air-bridge of gate number 17 and in Room 5T024, the defendant had said that he did not know there were drugs in the suitcase.

He also remembered, during the time when PW3 was present in the room, the defendant had repeatedly requested, on about eight to 10 occasions, to use a telephone. However, he said, he did not know the purpose.  He did not hear the defendant ask anyone to check the airport CCTV.” 

24.Then PW3:

“In cross-examination …. the witness was asked about the period of time between the arrest, which was at about 11.45, and his leaving Room 5T024 at about 3.30 that afternoon, during which time, PW2 was at all times present. He said that during this period of time, the defendant had not mentioned anything about a Mr Tan or that he had been asked to go to the Philippines to work. He said he did hear the defendant say he had had a stroke, which information he had relayed to his inspector, but otherwise, the defendant did not say anything special.

He said the defendant did not request to make any phone calls during that period of time.  Later, in re-examination, he said it was much later, at 10-something that evening that the defendant made a request to call his ex-wife ….”

25.Then the Applicant:

“Inside the Customs Office [Room 5T204], the defendant told PW3 that a friend had asked him to work in the Philippines and had given him an air ticket. When PW3 remarked that it was very nice of someone to have paid for the trip so that he could have fun, the defendant said that he had had a stroke and he was also going there to relax. He told the officer that he really did not know there was a dangerous drug in the suitcase and he also told him that Mr Tan was waiting to board the plane and that they should go and arrest him. He was asked for Tan’s full name but he was not, at that stage, able to give it, whereupon the officer told the defendant that there were many Tans on the plane and without a full name, they could not do anything.

In this connection, members of the jury, we can see, according to Exhibit D3, that there were, I think, at least two other Tans on the flight in that manifest.

The defendant said he also asked PW3 to check the airport CCTV so that they could see Tan and his cousin but the officer said it was a matter for the Airport Authority and any images captured on tape would not be clear enough …..

After sitting for a while, the defendant asked to be able to make a telephone call to his home but he was not allowed to do so. When later that night he was able to call his wife, he asked her to find out the address where Tan lived. She was eventually able to give him the address when she came to visit him in prison on either 5 or 6 July.

The defendant was asked about Mr Law Ka-hung and the visits this person had made to him while he was in prison. He said that Law told him that Mr Tan had asked him to come and see him. However, he personally did not know Law. This Mr Law had told him not to be scared and that a lawyer would be arranged. He further asked him to sign some documents for the lawyers. The defendant reported this visit to a senior officer in the prison but the officer said that nothing could be done unless a threat was made to him.

After two visits from this man Law, a lawyer appeared called Mr Li Po-wing - he was to become DW2 - who told the defendant that Mr Law had asked him to come to visit him.  The defendant said that some documents were produced which he refused to sign.  After the lawyer’s visit, Mr Law came a third time and asked him why he had refused to sign the documents. The defendant told him that he had been cheated by Tan.  He said the same thing to the lawyer when he saw him again on a second occasion.”

26.To the extent that he said the Applicant was checking in on his own, PW1’s evidence was important.  But as the Applicant readily admits, to say he is wrong is to have one person’s word against another’s. 

27.Having gone through the summing up, we are satisfied that the defence was given a fair run.  There was nothing more that counsel could have done.  It is unfortunate that the airport CCTV was unavailable but given the judge’s treatment of this whole topic concerning Tan, there can be no doubt that the jury was fully apprised of the defence position.  They nevertheless returned a unanimous verdict of guilty.

CONCLUSION

28.The Applicant, understandably for someone acting in person, sought afresh to assert his innocence before this Court without appreciating that this is a court of review rather than a court of retrial.

29.The facts and the defence were fully before the jury, as was the key question which the jury was enjoined to decide, namely, whether it was proved that the Applicant knew that he was carrying dangerous drugs.  The jury took a considerable time to consider their verdict and it is noteworthy that the judge commented to counsel, in the jury’s absence, how extraordinarily conscientious this jury appeared to him to be. 

30.We could discern no misdirection by the judge or any procedural irregularity and there is no basis in law upon which we were enabled to set aside the verdict.  Accordingly, we dismissed the application.

Mr Michael Tsang, PP of Department of Justice, for the respondent

The applicant appeared in person

[1] It was the prosecution case that the Applicant first mentioned about Tan in his record of interview (ruled inadmissible), not during the first leg of the investigation shortly after arrest.