HKSAR v. Tam Wai Lim, William

CACC 448/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 448 OF 2013

(ON APPEAL FROM HCCC NO. 99 OF 2013)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.The applicant seeks leave to appeal against his conviction on 10 December 2013 after trial by E. Toh and a jury of conspiracy to traffic in dangerous drugs between an unknown date in December 2011 and 1 February 2012, contrary to section 4(1)(a) and (3) and section 39 of the Dangerous Drugs Ordinance, Cap 134 and section 159A and 159C of the Crimes Ordinance, Cap. 200.

The Trial

The prosecution case

2.The prosecution relied in its case on the evidence of Chui Tak Man, an accomplice, who was serving a sentence of 7 years’ imprisonment for unlawfully trafficking in dangerous drugs, namely 43.28 grammes of methamphetamine hydrochloride (‘ice’) and 38.39 grammes of cocaine on 1 February 2012 at Lo Wu Border Crossing on his entry into Hong Kong from the Mainland.  Chui pleaded guilty to the offence in the Magistracy and, having been committed for sentence to the Court of First Instance, on 22 November 2012 Barnes J sentenced Chui to that term of imprisonment.

3.Chui testified that he had known the applicant since 2007-2008.  He had visited the applicant’s home, where he consumed dangerous drugs.  Having been sentenced to 5 years’ imprisonment in 2008 for unlawfully trafficking in dangerous drugs,[1] he was released in 2011.  He renewed his contact with the applicant and they met socially about once a week.  He was unemployed.  The applicant suggested to him that he act as a courier of ice from the Mainland to Hong Kong for a reward of between $300 and $500 per ounce of ice.  He agreed to do so.  

4.On 31 January 2012 he travelled with the applicant to Shui Wai in Shenzhen in the Mainland where at Lin Che’s home he was given 250 grammes of ice, which he brought back to Hong Kong together with the applicant. On the following day, he met the applicant in the Vienna hotel in the Mainland and after 4-5 ounces of white powder and 2 ounces of ice were strapped to his body with Cling film, he crossed the border into Hong Kong.  On his return to his home, he placed the dangerous drugs in a false ceiling.  On the telephone instructions of the applicant he returned to the Mainland in the afternoon, where he met Lin Che at the latter’s home and the ice and cocaine found on him on his subsequent arrest were strapped to his body.  On the telephone instructions of the applicant to deliver those dangerous drugs to his home, the applicant set off for Hong Kong.  The prosecution adduced into evidence the Immigration Department records of the movements of the applicant and Chui to and from Hong Kong and the Mainland which, as the judge observed, demonstrated that on occasions they travelled to and from Hong Kong and the Mainland at around similar times.[2]

5.Chui said that he made contact from time to time with the applicant on the latter’s telephone number, 6569 8820 or the Mainland number 155 4680 8820.  The prosecution adduced into evidence the telephone records in respect of those telephone numbers to evidence contact between them and the telephone number Chui said that he used.[3]

6.Chui accepted that he had lied to the police in respect of the offence of unlawfully trafficking in dangerous drugs on 1 February 2012, for which he was arrested and prosecuted.  His explanation that he had strapped the dangerous drugs to his person himself was a lie, as was his explanation as to the source of the dangerous drugs and his claim that it was for his own consumption.  He accepted that he was giving evidence in the hope that, as a result, he would be afforded a discount in the sentence imposed upon him.  Relying on the fact of the conviction of the applicant, Chui applied to this Court out-of-time for leave to appeal against sentence.  On 2 July 2014, in a judgment delivered by Lunn VP, this Court allowed the application, quashed the sentence of 7 years’ imprisonment and in its place imposed a sentence of 5 years and 3 months’ imprisonment on Chui.[4]

7.Prior to the hearing the judgment of the court was interpreted to the applicant.  At the hearing the applicant indicated that he had no objection to Lunn VP being a member of the Court.  Similarly, having been provided with a copy of the judgment at the hearing, Mr Edmond Lee, for the respondent, indicated that he had no application to make.

The defence case

8.The applicant testified in the defence case.  He said that he knew Chui.  On occasions they met in the Mainland to which they travelled to socialize.  They did not usually travel together.  Sometimes they met up accidentally.  The telephone numbers which Chui had testified were used by the applicant were not telephone numbers he used.   His telephone number was different, namely 9529 5592.  The prosecution did not adduce into evidence telephone records relevant to that telephone number.[5]  The applicant denied that he had ever conspired with Chui, or anyone else, to traffic unlawfully in dangerous drugs.

Grounds of appeal against conviction

9.Attached to Form XI, by which the applicant gave notice on 31 December 2013 of his application for leave to appeal against conviction, the applicant set out his grounds of appeal.  First, he said that Chui’s testimony was doubtful, pointing out that he had admitted that he hoped his testimony would enable him to receive a reduced sentence of imprisonment.  Secondly, he asserted that the telephone records in respect of the telephone numbers about which Chui had testified were numbers used by the applicant were not telephone numbers he used.  Thirdly, he pointed out that Chui had said that he had been given dangerous drugs by other persons, not the applicant.  Pointing out that Chui had been uncertain as to dates and had received dangerous drugs from a third person without any prior communication from the applicant, he submitted that Chui’s evidence was incomplete and untruthful, so that it was unfair to have been convicted on that testimony.  At the hearing, the applicant indicated that he did not wish to make any oral submissions in support of the application.

A consideration of the submissions

The summing-up

10.In her summing-up, the judge directed the jury repeatedly to approach Chui’s evidence with caution, directing the jury to be “specially cautious” [6] and “very cautious”.[7]  In particular, she said:[8]

“ Chui Tak Man is a convicted felon. As Ms Moosdeen has pointed out to you, you have before you the criminal record of Chui Tak Man. Not only has he been involved in dishonest activities in the past - he has been involved in theft - he has also been involved in drugs, members of the jury, both for possession and for trafficking prior to this occasion. So he is certainly not an innocent man who has just come out of school. He could be termed to be someone who is rather street-smart. You will also remember, also you can see from the Admitted Facts, he also claimed to be a member of a tried society on two previous occasions.”

11.In inviting the jury to be very cautious when considering his evidence, the judge explained that was:[9]

“ because of his background, and also because he has told you that he admitted that he had interests of his own to serve in giving evidence against the defendant because he is hoping for a lighter sentence.”

12.Subsequently, in repeating her warning the judge said: [10]

“ ..you must be very cautious to convict on Chui Tak Man’s evidence because there is no corroboration, because you know of his background. As I have said, he is a convicted felon. He has admitted to you that he has lied on many occasions, both to the police and to the court. When he pleaded guilty, he claimed that the drugs were for his own consumption and so you must be careful when you are considering his evidence..”

13.Then, the judge pointed out inconsistencies between the applicants’ evidence and his out-of-court statements:[11]

“ He agreed, in the 16 October statement, 2012, he said to the police that inside the room in the Vienna hotel was a person called Ah Lung and Lin Che. He said that Ah Lung was the person who supplied drugs to him before. You may ask yourself why he did not mention Ah Lung in his evidence in court in chief. So who is this person?

He said he agreed that, at the identification parade, when he picked out the defendant, he told the police that the defendant had instructed him to bring drugs twice to Hong Kong in February 2012, and once on 17 December 2011, whereas, in court he says a different date.”

14.The judge went on to remind the jury:[12]

“ …in re-examination, he was asked, “You said in cross-examination you wanted to protect the supplier. Why?”. His answer was, “I was afraid I may be beaten by them because I go there frequently”. So take that into account. He said he was afraid to be beaten by them because he went there frequently, so he wanted to protect supplier. So why then would he be giving evidence against the defendant who, according to his evidence, would be the supplier.”

15.Then, the judge told the jury that there was no “independent evidence to connect the defendant to the crime”, pointing out that there was no independent evidence that the telephone numbers that Chui testified were the telephone numbers of the applicant, which he testified that he used to contact him, were used by the applicant.[13]

Conclusion

16.We are satisfied that the judge’s directions to the jury in respect of their approach to Chui’s evidence were appropriate and sufficient, given the fact that he was a party to the conspiracy to traffic unlawfully in dangerous drugs alleged against the applicant.  Having pointed out the frailties of his evidence at length to the jury, she directed the jury correctly that, having taken those warnings into account, nevertheless, “if you still find that he was telling you the truth, then you may accept his evidence.”[14]  In the result, we are satisfied that there is no merit in the application for leave to appeal against conviction, which is refused.

Mr Edmond Lee, SADPP, of the Department of Justice, for the respondent

Applicant appeared in person