HKSAR v. TAN CHIEW KOK

CACC 436/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 436 OF 2010

(ON APPEAL FROM HCCC NO. 302 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.  On 17 November 2010 the Applicant was convicted after trial by Bokhary J (sitting with a jury) of one count of trafficking in dangerous drugs, namely, 9,981.24 grammes of a crystalline solid containing 9,857.09 grammes of methamphetamine hydrochloride (commonly known as “Ice”). The street value of the Ice was approximately $7.3m. On the same day, he was sentenced to a term of imprisonment of 25 years.

2.  The Applicant applied for leave to appeal against conviction.  At the conclusion of the hearing for leave on 18 November 2011, we dismissed his application.  These are our reasons.

Prosecution case

3.  The undisputed prosecution evidence was that on 28 April 2009, the Applicant arrived in Hong Kong through the Lok Ma Chau Border Control Point.  He was in a cross-border private SUV driven by Tam Hing Cheung (“Tam”).  Also in the vehicle were another man Hii Lu Cheung (“Hii”) and the Applicant’s wife.  There were some suitcases at the back of the vehicle.

4.  Customs officers searching the Applicant’s suitcase (Exhibit P11), which was not locked, found 2 bags (P12 and P18). 

(1) These bags (P12 and P18) were referred to at the trial as “travelling bags”, or “brown bags”, or “Hong Kong Memories” bags after the words printed on them.

(2) In one bag (P12) was a cloth bag marked “Gucci” (P13). Inside the Gucci bag were 2 cereal boxes (P14 and P15). Inside each cereal box was Ice, double-bagged in resealable plastic bags and wrapped in tinfoil.

(3) In the other bag (P18) were 3 cereal boxes (P19, P20 and P21). These cereal boxes were wrapped in plastic wrap. Inside each cereal box was Ice, again double-bagged in resealable plastic bags and wrapped in tinfoil.

(4) Also inside the Applicant’s suitcase (P11) was a small cloth bag (P25) containing a “shaving set” paper box (P26). Inside the “shaving set” box were 2 tinfoil packets (P27 and P29), each containing Ice.

(5) The total amount of Ice found in the suitcase was nearly 10 kg.

5.  A right-hand fingerprint of the Applicant was found on the plastic wrap of one cereal box (P19), and a left-hand fingerprint was found on the plastic wrap of another cereal box (P21). 

6.  None of the above facts was disputed by the Applicant.

7.  In Hii’s suitcase, which was locked, were found 2 smaller amounts of Ice.  One amount (in a plastic bag) was found in a sock, and the other (also in a plastic bag) was found in a pocket of a pair of jeans.  The total amount of Ice was 13.06 grammes.  Subsequently Hii pleaded guilty to a count of simple possession of the Ice found in his suitcase.

8.  Although the driver Tam was originally expected to be a prosecution witness, by the time of trial he was no longer to be found.  It was an agreed fact that he had a criminal record including simple possession of dangerous drugs. 

Defence case

9.  At trial, the Applicant’s rather confused testimony was to the following effect. He was born in Malaysia and was in his late 30's.  He left school at 13.  He lived in Kuching, Sarawak where his family operated a snack business.  He said that even though his monthly income was only 1,500 ringgits for helping in his sister’s coffee shop, he had received some money from his father from the sale of land.    

10.  The Applicant had known Hii for more than 10 years.  Hii had originally lived in Sarawak.  However Hii moved to live in Johore Bahru in 2005-6 and after that, they met up only sporadically when Hii returned to Kuching, and when the Applicant and his then girlfriend (later his wife) went to Kuala Lumpur once a year. 

11.  In September and October 2008, the Applicant and his then girlfriend came to Hong Kong and then to the mainland on at least 4 occasions.  Reasons given for the various visits included the girlfriend’s sourcing of  beauty products for trial for a beauty salon she was intending to open in Kuching, sightseeing with other friends, looking at beauty equipment, following the girlfriend to see if she was seeing another man, and for proposing to her there.  The upshot was that the Applicant was a seasoned traveller.

12.  In January 2009, the Applicant married the girlfriend.  The next month they went to the mainland again where they saw Hii.

13.  In March the Applicant called Hii and asked if he wished to “have fun” together in Shenzhen the following month.  Hii said he would join them if his employer would permit him.

14.  The Applicant said he went to Shenzhen on 18 April intending to stay for 10 days or so.  However on 21 April he returned to Kuching due to his father’s ill health. 

15.  Nevertheless on 23 April he and his wife returned to Hong Kong and the next day he met up with Hii in Shenzhen.  They stayed in separate hotels.

16.  On 26 April, Hii suggested that the Applicant and his wife have  dinner with him (Hii) at a restaurant in his hotel.  Hii asked them up to his hotel room first so that he could take them to the restaurant.  Hii suggested they could travel to Hong Kong together on 28 April as he could arrange for a car to take them all. The Applicant accepted this arrangement.

17.  According to the Applicant, there were “many things” on Hii’s bed in the hotel room. There were clothes, electrical equipment and cereal boxes.  The Applicant said that he used both hands to “shove” some cereal boxes and clothes away to clear a space for himself to sit down.        

18.  The next evening (27 April), Hii called the Applicant and said that he had “two pieces of stuff” and did not have enough space to put them in, so he asked the Applicant if he could “lend him some space for him to put them”.  The Applicant said he would check his luggage and let Hii know the next morning. 

19.  The Applicant said the next morning (28 April), Hii called him and arranged to have breakfast with him and his wife at his (the Applicant’s) hotel.  The Applicant and his wife packed and took their luggage downstairs and waited for Hii.  Hii turned up carrying a backpack on his back, and was pulling a suitcase with one hand, and carrying 2 bags with the other hand.  The 3 of them stored their luggage with the hotel luggage counter, and went to breakfast in the hotel.     

20.  The Applicant said that after breakfast they went back to the luggage counter where Hii asked him if he had prepared space for him (Hii) to put the 2 bags that he had been carrying in his hand.  The Applicant said he told Hii he had “got space ready in my suitcase” and handed it (P11) over to Hii.  The Applicant and his wife then went to settle the bill, leaving Hii to pack his bags into the Applicant’s suitcase.

21.  The Applicant said he did not ask Hii what the bags contained as he had been his friend for more than 10 years, and he was not present when Hii packed the bags into his suitcase (P11). 

22.  The Applicant said that after he settled the bill and went to the hotel entrance, he saw a vehicle with Hii sitting in the front passenger seat and his wife behind.  The luggage was inside the vehicle.  The Applicant said in examination in chief that he did not know the driver of the vehicle.  However in cross-examination he admitted that he had travelled in the same vehicle on previous trips in February and April that same year, and that Tam was the driver on each occasion.  He said in February when he and his wife arrived at Hong Kong airport, Tam and his vehicle had been allocated by a car rental agent to drive them to the mainland, and by coincidence Hii also recommended Tam to his wife for the return trip.  Afterwards Tam gave them a discount for subsequent trips. 

23.  The Applicant said that when on 28 April the vehicle reached the Lok Ma Chau border, customs authorities searched their luggage.  The Applicant said he told the customs officer that the suitcase (P11) was his, but when the officer asked him whether the 2 bags (P12 and P18) were his, he said he had lent the space to his friend as his friend’s suitcase was too full.  This was denied by the customs officer.   According to the Applicant, the officer also asked what the cereal boxes were, and Hii replied it was foodstuff.  This was also denied by the customs officer.  According to the Applicant, he also told Hii the officer wanted to open the box and Hii said “let him open it”.  This was also denied by the customs officer.               

24.  The officers found the Ice inside the two bags (P12 and P18) in the Applicant’s suitcase (P11).  They also found a lady’s T-shirt, a pair of shorts and a packet of sanitary napkins inside.  These belonged to the Applicant’s wife.  As for the shaving set paper box (P26) containing 2 packets of Ice (P27 and P29), which was also found inside the Applicant’s suitcase (P11), the Applicant said it was not his.

Verdict

25.  The jury found the Applicant guilty by a majority verdict of 6-1.

Grounds of appeal

26.  In his grounds of appeal the Applicant argued that the judge had in summing-up “introduced and repeated a powerful argument, namely the idea that highly valuable and secretive matter such as dangerous drugs worth HK$7.35m would not be entrusted to a person who did not know its nature and value”.  It was argued that that point was not appropriately made in this case because Hii had not “entrusted” the Applicant to carry the drugs, but rather had surreptitiously planted the drugs in the Applicant’s suitcase, whilst throughout maintaining control over them as Hii was travelling together with the Applicant.  It was argued that the judge had advanced this argument without warning to the parties and it meant that the Applicant had no means to answer the point. 

Discussion

27.  We do not consider that there is anything in this ground.  A trial judge is entitled to comment on the defence case, even in a manner that is adverse to the defence.  In Lin Ping Keung v HKSAR [2005] 8 HKCFAR 52)the Court of Final Appeal referred to the judgment of Simon Brown LJ in R v Nelson [1997] Crim LR 234 who said:

“... if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis”.

The Court of Final Appeal held that the essential consideration is whether the jury has been clearly told that the judge’s comments are his personal views which they may ignore.

28.  In the present case, the case of the Applicant as the innocent courier presented a number of implausibilities, such as the unlikelihood of Hii inviting the Applicant and his wife to his hotel room without secreting the cereal boxes containing dangerous drugs; the Applicant’s failure to notice the unusual weight of the cereal boxes when he “shoved” them away on the bed; and the unlikelihood of Hii bringing the two bags (P12 and P18) on the morning of their departure seemingly on the assumption that the Applicant would carry them for him, when the Applicant had not even told him he had spare space in his suitcase and when Hii’s own suitcase was full.  There was of course also the inconsistencies in the Applicant’s own evidence as to whether he knew Tam the driver.     

29.  More importantly the trial judge reminded the jury on a number of occasions that they were the sole judges of fact, and that “if I seem to express a view of the facts, you must reject that view if it does not commend itself to you”.  Furthermore the judge’s comments on whether it was realistic to think that anyone involved with such a valuable amount of drugs would let them be carried by an innocent outsider were couched in moderate language, and were contained in a summing-up which set out the defence case fully, a defence case which also emphasised the value of the drugs and the fact that they were placed in the Applicant’s unlocked suitcase.

Order

30.  In the circumstances, we did not consider that there were any merits in the ground of appeal against conviction, and the Applicant’s application was dismissed.