HKSAR v. LAU TING YIN

HCCC 174/2020

[2021] HKCFI 1646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 174 OF 2020

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REASONS FOR DECISION
NO CASE TO ANSWER

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1.  This is an application by Ms Alva, on behalf of the defendant Lau Ting Yin of no case to answer. She submits that the Court should withdraw the case from the jury because the acts relied upon by the prosecution are not sufficiently identified, and where identified are not sufficiently proximate. The evidence does not support an intention to traffic in dangerous drugs (“TDD”) nor is there any evidence to upon which a jury could convict the defendant of an attempt to traffic in a dangerous drug. In so saying, the court should conclude that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it and the matter should be withdrawn from the jury.

2.  The defendant is charged with a single count of attempting to traffic in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134 (“the DDO”) and s159G of the Crimes Ordinance, Cap 200.  It is the prosecution’s case that the jury can be asked to look at the evidence in the round.  That begins when Ah Hung asks the defendant to find someone to collect a parcel.  The defendant knows that activity is illegal and suspects that it involves dangerous drugs.  He says as much to Ah Sing when he seeks to recruit him on behalf of Ah Hung.  This is approximately one month before the material events.  Whilst there is no intervening evidence of any involvement by the defendant in the delivery of the parcel to Ah Sing on 9 February 2019, the prosecution say that the jury can infer that when he travelled to Ah Sing’s flat that evening, knowing at that stage that Ah Sing was repacking dangerous drugs, he went with an intention to play some role.  The act of travelling to the flat, knocking upon the door and asking for Ah Sing is sufficient evidence from which the jury can infer that he had carried out an act which was more than merely preparatory to TDD.  Mr Laskey relies upon the case of HKSAR v Nanik CACC 114/2016; [2018] HKCA 500 for this proposition.  This was a prosecution for aiding and abetting TDD.  The appellant had been apprehended with her co-defendant ‘Sugiyanti’, when they were both in the Jordan MTR.  It was Sugiyanti who was in possession of the drugs.  On arrest and under caution, the appellant had said “It was Phillip who said she would be given $1,000 for taking something with a girl”.  When asked what, the appellant had said “The female said, it was cooked cocaine”[1].  Those admissions were reduced into writing and signed by the appellant.  In her video recorded interview (“VRI”), she had gone into some detail about Phillip and the events including the role she was to play.  In her defence in trial she said she had made no such admissions.  She was with Sugiyanti for a wholly innocent purpose. She knew nothing about the drugs.  The issue was clearly one for the jury to decide.  There was more than sufficient evidence before the jury, if they believed her admissions, from which they could find her guilty of aiding and abetting TDD.  This authority was unhelpful.  The charge before the court is one of attempt.  The law of attempt and aiding and abetting are different but in any event there were clear admissions in the case of Nanik, which were wholly within the purview of a jury.

The Law of Attempt

3.  Section 159G of the Crimes Ordinance, Cap 200 states:

“Attempting to commit an offence

(1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.”

4.  The completed crime with which the defendant is charged as attempting, is one of trafficking in a dangerous drug contrary to s4(1)(a) and (3) of the DDO.  The constituent elements of the offence of trafficking in dangerous drugs are knowingly possessing dangerous drugs and unlawful dealing amounting to an act of trafficking.  The actus reus is therefore the act of possession of the dangerous drugs along with an act amounting to trafficking.  The mens rea is knowledge of such possession and an intention to traffic.  It is a conduct crime.  The prosecution must therefore prove that the defendant knew that he was to deal in DD, intended to do so and that he did an act that was more than merely preparatory towards that end.

5.  There is no issue on the facts that the defendant never possessed the drugs himself.  There is no evidence that he had possession of them by reason of having control over them.  There is no evidence that he supplied them to Ah Sing or that he arranged for them to be supplied to Ah Sing.  There may be an inference to be drawn from his admission on arrest and his VRI, if accepted, that this was done by Ah Hung.  There is no evidence that he provided the means of packaging the drugs or that he directed Ah Sing as to packaging and there is no evidence as to what was to be done with the drugs after packaging other than the defendant’s reference in his VRI that he believed Ah Sing was to receive the package but that someone else was to collect the package from him shortly thereafter.  Mr Laskey simply points to the act of travelling to the flat, ringing the doorbell and asking for Ah Sing from which, along with the fact that by this stage he accepts he knew of the nature of the DD, he submits the jury can draw an irresistible inference that the defendant went there in order to play some part, albeit the prosecution are not in a position to say what part.  He submits, the defendant has embarked upon the crime proper by this stage.

6.  What is required for the offence of attempt to commit a crime is a physical act in pursuance of the offence which is sufficiently proximate to the complete offence.[2]  There were previously two lines of approach to this issue.  The first in time being that to be found in Eagleton (1855) Dears CC 515 per Parke B: “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are…… It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt”.  The second comes from Stephen’s A Digest of the Criminal Law, 5^th Ed (1894), Article 50:“An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted”.  Lord Diplock in DPP v Stonehouse [1978] AC 55, stated his understanding of the former approach to be: “In other words the offender must have crossed the Rubicon and burnt his boats”, whilst Lord Edmund‑Davies sought to rely upon the Stephen’s Digest approach i.e. when an act or series of acts “which is immediately and not merely remotely connected with it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime”[3].  The common law was thereafter superceded by the introduction of the Criminal Attempts Act 1981 which is in similar terms to s159G of the Crimes Ordinance, Cap 200.  Since then, and definitively, the Lord Chief Justice stated that the question before the jury where an attempt is charged is: Was the defendant still in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle the jury to say that he had embarked upon the offence itself?  In so doing the legislature sought to steer a midway course between the two approaches identifying the point in time when the ‘series of acts’ begins and that is when the merely preparatory acts come to an end and the defendant embarks upon the crime proper[4].  That is also the law in Hong Kong.

7.  On a trial for an attempt to commit a substantive offence it is a question for the judge to decide whether there is any evidence to establish the acts done by the accused which were sufficiently proximate to the complete offence to constitute an attempt to commit it and it is for the jury to say whether they accept that evidence as amounting to an attempt: R v Cook (1963) 48 Cr App R. 98.  In the crime of attempt, the concept of the proximity between the acts of the accused and the complete offence involves some imprecision, they can be so removed from the complete offence that no reasonable person could consider them sufficiently proximate to conform to the definition of an attempt but at the other end they can be so immediately connected with it that no reasonable person could regard them as not so conforming.

8.  Is there evidence before the court that the defendant intended to traffic in the dangerous drugs which were found in the possession of Ah Sing on 9 February 2019 on a joint enterprise basis as Mr Laskey suggests i.e. that he intended to unlawfully possess DD in order to traffic in them?  Is there evidence to show that the defendant did an act which was more than merely preparatory towards carrying out that intention?  In other words, did he embark upon acts, the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime carried out.  For the purpose of analysis, the events can be divided into two. The events from approximately one month prior to 9 February 2019 when the defendant speaks with Ah Hung and introduces Ah Sing and then the events of 9 February 2019.  The intervening evidence is of no assistance.  Mr Laskey prays in aid the earlier events but accepts for the purposes of attempt he must identify the acts the prosecution rely upon to show that the crime proper had been embarked upon.

9.  It may be that the prosecution could have brought this case against the defendant for attempt as a result of a line of authority in respect of controlled deliveries, which suggests that a person who attends at the scene of a crime may have reached the stage at which his actions can be said to be more than merely preparatory.  In HKSAR v Perez Osorio Luis Fernando CACC 284/2016, McWalters JA said[5]:

“It was the prosecution case that the applicant came to the room intending to take possession of the suitcase in the knowledge that it contained dangerous drugs but was arrested before he could do so. …… To suggest that the facts did not establish that the applicant’s conduct was not more than ‘merely preparatory’, is nonsensical. The applicant attended the hotel room, took steps to enter it and reached out to take hold of the suitcase containing the drugs.”

And in HKSAR v Chung Sai Wah CACC 367/2017, the same Justice of Appeal stated[6]:

“By its verdict, the jury must have been satisfied that the applicant knew there were drugs in the hotel room and he intended to go to the hotel room to deal with them in some way. He knew he had to contact a person in the room and he did so, twice. He travelled to the hotel, contacted PW1, enquired from PW1 the room number, went up to the room, knocked on the door and entered the room. He did all of this with the intention to deal in some way with the drugs in the room. He was only one step away from committing the substantive offence. As a matter of law and as matter of fact there is no basis for concluding that the applicant had not gone beyond acts of mere preparation.”

10.  A closer look at the facts of those cases, compared with the facts of this case, will show that they are not on all fours with the issue and evidence before the Court.  In Perez, the accused had been acquitted of the substantive charge of TDD and convicted of the alternative charge of attempt.  The facts are simple.  A person called Tobar had imported DD into Hong Kong.  He was arrested at the Hong Kong International Airport and had agreed to be part of a controlled delivery operation.  He was taken to his pre-arranged hotel room but nothing occurred on the first night or following morning.  By the afternoon, Customs & Excise had found a Hong Kong telephone number on his phone in the name of Laura and instructed him to call it.  There were a number of phone calls, all of which were in Spanish and with a woman.  At 6.26 pm on the next day, the accused, a male, arrived.  Tobar answered the door, spoke to the accused and attempted to pass the suitcase to him.  The accused touched the handle of the suitcase as if going to collect it and started to enter the room, at which point he was arrested.  He carried with him a mobile phone containing the same contact number as the one which Tobar had earlier rung for Laura although it was for someone called Nata.  There were several calls between the accused and the woman prior to the collection.  Digital evidence suggested that the woman’s phone and the accused’s phone had called the hotel during the relevant period as well but there was no evidence of the accused contacting the telephone of Tobar and therefore everything had been arranged through the woman.  The defence case was that the accused had attended the room on what he believed to be an innocent errand on behalf of his girlfriend.  From the facts it is clear that the accused and the defendant had no other connection.  He went so far as to physically seek to place his hands upon the suitcase containing the DD.  In Chung Sai Wah, the accused was found guilty after trial of TDD.  The Court of Appeal quashed the conviction and substituted one of attempt.  In that case, the controlled delivery took place in a hotel room but in this instance the accused was said to have attended in order to teach the arrested person how to mix drugs.  That person was unknown to the AP (PW1).  The digital evidence, which was not disputed, showed that the accused had twice phoned PW1 shortly before he came to the room.  The accused had rung the doorbell and entered the room.  When apprehended he had said he came to the room ‘to deal with coke’, which was the DD in the possession of PW1.  The defence case was that he had made no such admission and that he had said he was there to obtain telephones.  In any event, the word coke was an everyday word and was ambiguous and equivocal.  In its reasoning, the Court of Appeal relied heavily upon the admission as to the reason for his presence and the fact that the jury, by its verdict, must have been satisfied that the accused knew there were DD in the hotel room and that he intended to go there to deal in them.  That being the case he again had taken all necessary steps towards completion of the offence.

11.  The matter before the Court is still wholly different.  The person who is said to have carried out the substantive offence, Choi Yue Sing, had known the defendant since he was twelve years of age.  They were both only 17 at the time of the offending. They were friends.  There was therefore no overwhelming adverse inference to be drawn from any contact between them, without more.  The defendant admitted from the outset that he had introduced Ah Sing to Ah Hung, the person he suggested was the person who arranged to have the parcel delivered to Ah Sing.  According to his VRI, he had no more to do with the arrangements.  This had been left between Ah Sing and Ah Hung.  He was simply to be paid $300 for the introduction.  At that stage in time, he had not been told what was to be in any parcel that Ah Hung required Ah Sing to receive and although he had suspected it would be something illegal, which is why he did not volunteer himself, he had not been told what it was.  He did suspect that it might be DD and had spoken to Ah Sing about this but he did not know for certain it was DD until he saw the photos on 9 February 2019 at 18:07.  Up to that point in time the only evidence that the prosecution has is the defendant’s admission before and after arrest and in interview, which are consistent as between each other.  There is no evidence before the Court of any other role than the one of introducer at a time he had no actual knowledge of DD but a suspicion.  It is trite law that suspicion is not enough.  The act of introducing someone a month before for an unspecified event in the future, is clearly not more than merely preparatory.  What then did he do on 9 February 2019 which was a step towards the completion of the offence.  Remember we are talking about two 17 year olds.  Ah Sing informs him he has received the parcel and shown him the contents but there are no other calls or WhatsApp messages that day to indicate that it was the defendant who was directing or controlling or even notifying Ah Sing of a delivery that day.  It is Ah Sing that asks him to go up to see the DD; it was Ah Sing that introduced the subject of packaging the DD.  At its highest, the prosecution has the reaction of the defendant to the fact that the drugs are ketamine, which appears to be very angry, but that is somewhat ambiguous and highly speculative.  On the evidence, it could just as easily be a reaction to the fact that his friend has been told to repackage the DD when all the defendant thought he was doing was to take receipt of the parcel and then pass it on.  There is no other evidence and so what inference can the prosecution possibly ask the jury to draw?  At best that his strong reaction suggests that he had some sort of unascertained involvement?

Conclusion

12.  There is insufficient direct evidence before the Court from which the prosecution can ask the jury to convict the defendant of attempt.  There is also insufficient indirect evidence from which the prosecution can ask the jury to draw an irresistible inference that the defendant played any role other than introducer and friend.  That being the case the prosecution cannot point to an act or acts which are more than merely preparatory such that the jury can be sure that the defendant has ‘embarked upon the crime proper’.  His knowledge of what Ah Sing is doing and his presence at the flat is insufficient to do that.  This matter must be withdrawn from the jury.  I find that no reasonable jury properly directed upon the law of attempt and the applicable evidence before the Court could safely convict the defendant of this offence.

13.  What is perhaps even more concerning to the Court, but which the Court has not taken into consideration when coming to the above decision, is the fact that the prosecution have in their possession and in the unused material, the video recorded interview of Ah Sing which is, of course, inadmissible as against the defendant.  However, it overwhelmingly suggests that Ah Sing was actually working for someone called Siu Lung (not Ah Hung) and had previously accepted delivery of two sets of drugs which he had then passed on to Siu Lung in their original condition.  It was Siu Lung who had asked him to repack the dangerous drugs on 9 February 2019, and it was Siu Lung who had provided him with the means of doing so.  Indeed, the prosecution seek to rely upon the above in their summary of facts which formed the basis of the plea of guilty of Choi Yue Sing.  The defendant is not mentioned other than as the introducer.  That basis of plea is clearly in conflict with their current case.