HKSAR v. LEUNG SING CHUNG AND ANOTHER

CACC 143/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 143 OF 2011

(ON APPEAL FROM HCCC NO. 213 OF 2010)

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

Hon McWalters J (giving the judgment of the Court):

Introduction

1.  The applicants were jointly indicted for two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Both offences occurred on the same date, namely 30 October 2009, and involved two separate quantities of drugs being stored in different storage units of a commercial storage premises.  The first count involved 12.61 kilogrammes of a mixture containing 8.26 kilogrammes of cocaine.  The second count involved 1.98 kilogrammes of a mixture containing 1.2 kilogrammes of cocaine.

2.  On 29 March 2011, the applicants were each convicted by the verdict of the jury of both counts on this indictment.  The trial judge, V Bokhary J, sentenced the 1^st applicant to 25 years imprisonment on count 1, and 20 years imprisonment on count 2, both sentences ordered to be served concurrently, thus making a total sentence of 25 years imprisonment.

3.  As regards the 2^nd applicant, he was sentenced to 28 years imprisonment on count 1, and to 23 years imprisonment on count 2, both sentences ordered to be served concurrently.  Thus making a total sentence of 28 years imprisonment.

4.  The 1^st applicant originally sought leave to appeal against both conviction and sentence.  However, by a notice filed with the court on 30 November 2011, the 1^st applicant abandoned his application for leave to appeal against sentence and this application was thereupon marked dismissed.  The only outstanding application of the 1^st applicant is therefore his application for leave to appeal against conviction.

5.  The 2^nd applicant likewise originally sought leave to appeal against both conviction and sentence but by a notice filed on 13 November 2012 he abandoned his sentence appeal and his application for leave to appeal against sentence was thereupon marked dismissed.  Consequently, the only outstanding application by the 2^nd applicant is his application for leave to appeal against conviction.

The Trial

6.  The drugs the subject of both charges were found in two storage units of a commercial mini-storage business operating from an industrial building in Cheung Sha Wan.  The name of the mini-storage business was “Storefriendly”.  Customers wishing to store goods at these premises had a range of sizes of storage unit to choose from and could rent out a storage unit for a period of a month at a time.  To gain access to a storage unit a customer would be provided with a smartcard to enter the Storefriendly premises.  Each smartcard could be identified as having been issued for the rental of a particular storage unit.  Once inside the premises the customer would go to the particular storage unit the customer had rented.  Each storage unit was individually locked by means of a padlock. The padlock was provided by the customer but padlocks could be purchased from Storefriendly.  There were no staff manning the storage premises of Storefriendly but CCTV was installed and by this means the comings and goings of customers to the premise of Storefriendly could be recorded.

7.  The two particular units in which the drugs were located are numbered R003 and R053A.  The drugs contained in storage unit R003 are the subject of the first count and those contained in storage unit R053A are the subject of the second count.

8.  The prosecution case was quite straightforward.  On 30 October 2009, the 1^st applicant travelled in the 2^nd applicant’s motor vehicle to the premises of Storefriendly.  At about 6.15 pm, the 1^st applicant entered Storefriendly with a smartcard, opened storage unit R003 with a key and took out two items.  Then he walked to another row inside the mini-storage premises, opened storage unit R053A with a key and put the two items he had taken from storage unit R003 inside storage unit R053A.  He had carried with him from the car a pink plastic bag and two items in storage unit R053A were found in a pink plastic bag.  The 1^st applicant locked both storage units before leaving.  The 1^st applicant then left the building and was returning to the motor vehicle of the 2^nd applicant when he was intercepted by police.

9.  Police officers had been lying in ambush at the premises of Storefriendly.  One police officer was observing the 1^st applicant by means of the CCTV and informing another colleague of what he was seeing.  After the 1^st applicant emerged from the building in which Storefriendly was located and was intercepted by the police he was searched and found to be in possession of two keys and a smartcard for storage unit R003 which enabled entry to the Storefriendly premises and access to storage units R003 and R053A. At the same time another police officer intercepted the 2^nd applicant inside his car.  This officer found inside a carrier bag of the 2^nd applicant two keys and a Storefriendly smartcard.  The keys were for storage units P138A and P138B and the smartcard had been issued for storage unit P138B.

10.  The police officers then escorted the 1^st and 2^nd applicants back to Storefriendly and gained entry to the premises by means of the smartcard found in the possession of the 1^st applicant.  The police opened the two storage units R003 and R053A, with the two keys seized from the 1^st applicant and found inside the dangerous drugs that are the subject of counts 1 and 2 (see paragraph 7 above).  The combined value of these dangerous drugs was HK$11.71 million.  The drugs in count 1 were contained in two cardboard cartons and were packaged similarly to those in count 2.  The flaps of the cardboard cartons were unsealed and in respect of one carton at least the packages were fairly readily visible.  Inside storage unit R053A the police found two empty cardboard cartons and some adhesive tape.  The pink plastic bag containing the two packages of cocaine removed from storage unit R003 were placed against the back wall of storage unit R053A.

11.  Using the keys found in the possession of the 2^nd applicant, the police found that they opened two storage units, P138A and P138B.  Inside P138A, there were some personal items whilst inside P138B, there was an empty carton box.  No dangerous drugs were found in either of these storage units.

12.  The applicants were then arrested for trafficking in the dangerous drugs.  Under caution the 1^st applicant admitted that he had earlier “removed two blocks of cocaine to cabinet no. 53 from cabinet no. 3”. The 2^nd applicant said under caution that he was “responsible for renting the cabinets”.

13.  A subsequent search of the 2^nd applicant’s bag resulted in the discovery of HK$124,970 in cash and also 5 mobile phones including one inserted with a prepaid SIM card.

14.  The police also made enquiry of the staff of Storefriendly.  The results of their enquiries were as follows:

(i)  on 28 February 2007, the storage unit P138B was rented to a person who provided as proof of identity, a photocopy of the photograph page of a British passport no JC8230987 in the name of Chan Jacky Ricardo;

(ii)  on 15 March 2007, the storage unit P138A was rented to the 2^nd applicant who provided a photocopy of his identity card as proof of his identity;

(iii)  on 18 March 2008, the storage unit R053A was rented to a person who used the name Chan Jacky Ricardo; and

(iv)  on 2 October 2009, the storage unit R003 was rented to a person who provided a photocopy identity card of Wong Wai Kit as proof of identity; and

(v)  the records of Storefriendly revealed that on six occasions the rentals of storage units R053A and P138B were paid to Storefriendly at the same time and under the same pay‑in slip.

15.  During the search of the 2^nd applicant’s home, the following documents relating to storage units R053A and P138B were found:

(i)  one official receipt (Exhibit P86) for the storage unit R053A for the period 1 January 2009 to 28 February 2009; and

(ii)  one licence agreement dated 28 February 2007 and one official receipt (Exhibit P87) for the storage unit P138B for the period 1 January 2009 to 28 February 2009.

16.  In respect of the person Chan Jacky Ricardo whose name was used to rent storage units R053A and P138B, there was:

(i)  evidence that the Identity and Passport Service of the United Kingdom had no trace of a British passport ever being issued to a person with this name, and there was no trace of a British passport bearing the passport no JC8230987;

(ii)  agreed evidence that no Hong Kong ID card had been issued to Chan Jacky Ricardo, and there was no Immigration Department arrival or departure record for this name for the period 1 January 2007 to 2 January 2010; and

(iii)  evidence that the address of Chan Jacky Ricardo given in the Storefriendly client information list of P138B and R053A was non‑existent.

17.  There was also evidence in respect of the mobile phone call records of both applicants.  The effect of these records was that there was no use by the 2^nd applicant of his subscriber phone number to call the 1^st applicant in the whole month of October 2009.  However, there were frequent telephone contacts between the prepaid SIM card mobile phone found in the 2^nd applicant’s bag, and a mobile number used by the 1^st applicant.  On the day of the offence there were in fact five contacts between these two phone numbers between the hours of 1.21 pm and 6.04 pm.

The 1^st applicant’s video record of interview

18.  The 1^st applicant participated in a video recorded interview under caution in which he told the police that he had been contacted on 29 October 2009 by a person to whom he referred as “Ah Biu” and this person had asked the 1^st applicant whether he would assist Ah Biu to do something for a reward of a HK$1,000.  When he met Ah Biu in the afternoon of 30 October 2009 this person handed him a card and two keys and told him to take something from storage unit R003 to storage unit R053A at Storefriendly.  He said that Ah Biu had told him that the things inside the storage unit were unlawful.  He took the card and keys and then returned home.

19.  Later that day, at about 4 pm, he was contacted by the 2^nd applicant, who asked him out for dinner.  The 2^nd applicant picked him up at 4 pm and they went to the premises of Storefriendly.  He went into the building where Storefriendly is located and told the 2^nd applicant to wait for him in the car.  He used the card to gain access to the mini-storage premises, and then used the key given to him by Ah Biu to open the padlock of storage unit R003.  He said that he saw that there were two carton boxes and a pink coloured plastic bag on the ground, and that there were two blocks of stuff inside the plastic bags.  He then took the plastic bags out, locked up storage unit R003 and walked to the row of storage unit R053A, opened it, placed the plastic bag on the ground inside it, locked up the storage unit and left the premises.  He admitted that he guessed that the things contained inside the plastic bag were cocaine.  He maintained in this record of interview that the 2^nd applicant only drove him to Storefriendly and had no knowledge of what he was doing there.

The 2^nd applicant’s video record of interview

20.  The 2^nd applicant also participated in a video recorded interview under caution.  The 2^nd applicant said that about 2 years previously, in Hong Kong, he was asked by a friend called Jacky, whom he had come to know in Canada, to rent a storage unit for him.  Jacky handed him a copy of his identity card, other information and HK$10,000.  At this time, the 2^nd applicant was already renting a storage unit at Storefriendly, being storage unit P138A, and so he simply rented storage unit P138B for Jacky.  He said that about half a year later he rented another storage unit, R053A, for Jacky.  He said that he did not know how to contact Jacky and on every occasion it was Jacky who contacted him.  He said that when he rented the two storage units for Jacky he bought padlocks from Storefriendly and each lock had two keys.  He handed one electronic access card and two keys of storage unit R053A and one key of storage unit P138B to Jacky.  He kept the electronic access card and one other key to storage unit P138B.

21.  He said that he had known the 1^st applicant for about 6 ‑ 9 months, having met him in a bar through Jacky.  He said that on the date of the charge, he received a call from the 1^st applicant at about 4 pm who invited him out for a meal.  He picked up the 1^st applicant in his private car and drove him to the Storefriendly premises.  He said he did not know anything about storage unit R003 and had no knowledge of what was stored in storage units P138B and R053A.  He said that the 5 mobile phones found on him all belonged to him.  As to the cash that was found in his bag, he said that that it came from his savings and he intended to use the money to buy kitchen utensils in the Mainland.  He operated a business of buying kitchenware in the Mainland and transporting it to Canada for sale.

The Defence Case

22.  Both applicants gave evidence.  However, they ran “cut‑throat” defences, each blaming the other for the commission of the offences.

The 1^st applicant’s case

23.  The 1^st applicant said that the person Ah Biu was in fact the 2^nd applicant.  He said that he had first met the 2^nd applicant in April 2009 and had performed business errands for him by going twice to Guangzhou.  On 20 October 2009, he went to Storefriendly with the 2^nd applicant and helped him to move things in and out of storage unit R003.  He said that access to this storage unit was gained by using a smartcard and a key provided by the 2^nd applicant.  Afterwards, the 1^st applicant returned the key to the 2^nd applicant, but the 2^nd applicant asked him to keep the smartcard.

24.  He said that on 30 October 2009, the 2^nd applicant asked him to move two blocks, which he said were computer components, from storage unit R003 to storage unit R053A.  The 2^nd applicant gave him the two keys and the pink plastic bag.  He did as instructed by the 2^nd applicant, and he believed that the two items that he moved from one storage unit to the other were in fact computer components.

25.  He denied saying what was recorded in the police officer’s notebook and said that he had been coached as to what he should say at his interview.  He asserted that his cooperation at the interview had been procured by police inducements, threats and violence.

26.  Finally, he claimed to have no knowledge of Wong Wai Kit or Chan Jacky Ricardo and did not know who the persons were who had rented the storage units.

The 2^nd applicant’s case

27.  The 2^nd applicant maintained that he was an importer of kitchen utensils from the Mainland to Canada.  He said that he came to know Jacky Chan in Canada in 2003 and in March 2007 this person had requested him to rent for him a storage unit at Storefriendly.  This conversation took place in Canada but some days after his return to Hong Kong the 2^nd applicant met Chan again and was told by him that he, Chan, had rented cabinet P138B at the mini-storage facility.  He thought the idea of renting one of these storage units to be a good one and so he rented P138A for himself.  He explained that the difference in his accounts of his dealings with Jacky Chan between his video interview and his evidence was due to him being confused at the time of his interview.

28.  He also said that in April 2008, Jacky Chan asked him to keep a spare key to storage unit P138B and a spare smartcard.  Jacky Chan also gave him HK$5,000 and asked him to help pay the rent for storage unit P138B and R053A.  He did not previously know of the existence of storage unit R003 and did not know Wong Wai Kit.

29.  In respect of the 1^st applicant he said that he met him in December 2008 and that his relationship with him was purely social.  He said that after the seeing the 1^st applicant socially in August he next saw him on 30 October 2009.  He denied going to Storefriendly with the 1^st applicant on 20 October 2009.  As to what happened on 30 October 2009, he said that he drove the 1^st applicant to Storefriendly at the 1^st applicant’s request, and did not know what the 1^st applicant had done after getting out of the car.  He denied trafficking in dangerous drugs and said that the reason he had so many telephones was because he had the practice of giving telephones to his family when they visited Hong Kong.  He denied being known as Ah Biu.  He also made allegations as to police impropriety in respect of his interview.  As to the cash that had been found in his possession, he said that it was the proceeds of two Rolex watches that he had sold the day before.

30.  The 2^nd applicant also called a witness who testified to having met, through the 2^nd applicant, a person called Jacky Chan. The purpose of this evidence was to establish that the 2^nd applicant was not Jacky Chan.

Grounds of Appeal

31.  The 1^st applicant complains in his first ground of appeal that a direction given by the judge in relation to inferences was in effect a direction to convict.  His second complaint is that the judge failed to direct the jury that mere suspicion that the packages contained dangerous drugs or cocaine or something unlawful was insufficient to prove guilt.  The third ground of appeal is that the judge repeatedly and unnecessarily reminded the jury of the street value of the cocaine, and the fourth ground of appeal is that the judge erred when directing the jury in relation to the 1^st applicant’s oral admission by stating that “it was very powerful evidence on each count”. The fifth ground was simply that by virtue of the preceding grounds the 1^st applicant’s convictions were unsafe and/or unsatisfactory.

32.  The 2^nd applicant in his amended perfected grounds of appeal complains that the judge erred in ruling that there was a case to answer on each count.  At the hearing of the appeal, the second ground of appeal was not pursued by counsel for the 2^nd applicant.  The third ground of the appeal is that the judge erred in law and in fact in repeatedly directing the jury in unfair terms that the jury may consider that only a guilty person, clearly referring to the 2^nd applicant, would be waiting downstairs while the 1^st applicant moved dangerous drugs.

Discussion

The 1^st applicant’s grounds of appeal

33.  In his first ground of appeal, the applicant complains of the following direction by the judge:

“In respect of each accused, was he a person who was involved with the dangerous drugs in each count so as to be dealing in or with them in the course of the drug trade, in other words, unlawfully trafficking in them? In answering this question in respect of each accused, you will look at the circumstances proved so that you feel sure of them, and you will then, using your common sense and sense of realism, come to your conclusion as to what is the only reasonable inference.”

34.  It is argued that the effect of this direction is to instruct the jury to convict the applicant on the basis that the only reasonable inference is that he must have been involved in drug trafficking.  It is said that the judge’s later directions on the drawing of inferences, which directions cannot give rise to any complaint, are insufficient to cure the effect of this earlier misdirection.

35.  In order to understand this ground it is necessary to remember that there are two quite separate offences.  The first count refers to the balance of the drugs remaining in storage unit R003 after the 1^st applicant had removed from this storage unit the drugs that are the subject of the second count ie the drugs that he put in the pink plastic bag and placed in storage unit R053A.  In order to prove trafficking in respect of both these quantities of drugs it was necessary for the jury to find that the 1^st applicant knew that all of what was in storage unit R003 were drugs and that he intended to do an act of trafficking in relation to them.  In respect of each quantity of drugs the evidence as to knowledge was different, a point highlighted by the second and fourth grounds of appeal.  This was glossed over by the judge whose directions seemed almost to place the element of trafficking into the category of a non‑contentious issue.  She said in her directions to the jury:

“The prosecution’s case on each count is that each accused was unlawfully trafficking in the dangerous drugs in question by dealing in or with them in the course of the drug trade.

Were the dangerous drugs in each count being dealt with in the course of the drug trade?  In all the circumstances, including of course the great value of those dangerous drugs, it may well be that you will not have the slightest difficulty or hesitation in coming to the sure conclusion, on the basis of what is the only reasonable inference, that the dangerous drugs in each count were being dealt with in the course of the drug trade, in other words, that they were being unlawfully trafficked in.”

36.  It is important to realize that at some stage of the trial the prosecution must have changed the way it was presenting its case on trafficking.  In the course of a no‑case submission made on behalf of the 2^nd applicant, the prosecuting counsel said that the case against the 2^nd applicant was based upon an allegation that he had constructive possession of the drugs. That is, trafficking was in the form of possession for trafficking, presumably for later distribution or supply.  But whether it be actual possession or constructive possession was clearly not something that appealed to the judge who seemed to see reliance on such legal concepts as unnecessarily complicating the issue.  In the ruling on the No Case to Answer submission the matter was articulated thus:

“Shorn, as it should be shorn, of unnecessary complications such as possession or constructive possession, the prosecution’s case on each count is that each accused was unlawfully trafficking in the dangerous drugs in question by dealing in or with them in the course of the drug trade.”

37.  This approach was repeated in the directions to the jury at the end of the trial where the judge said:

“Mr Gary Plowman SC for the 2^nd accused spoke in his speech of ‘possession’. As to that, it is the law that possession of dangerous drugs for the purpose of unlawful trafficking in them is itself the crime of unlawful trafficking in dangerous drugs. But it is unnecessary to complicate this case by going into the basis of guilt.

Quite simply, in relation to each accused on each count, you may find him guilty if you feel sure that he dealt in or with the dangerous drugs concerned in the course of the drug trade in that, knowing of the dangerous drugs in the Count 1 cabinet, he moved, or caused the moving of, some of them from that cabinet, to the Count 2 cabinet, leaving the rest of them in the Count 1 cabinet.” (Emphasis added)

38.  As desirable as it may be to make the jury’s task easier for them, this must never be done at the risk of glossing over or blurring the legal and evidential basis of a defendant’s criminal liability.  If the judge, presumably with the prosecutor’s acquiescence, wished to direct the jury to determine the element of trafficking by reference to the limb of “dealing with” then it was incumbent on her to direct them as to what form of dealing was relied on by the prosecution in respect of each count and what the evidence was in respect of each form of dealing.

39.  In respect of the second count the dealing was straight forward.  It was the removal of the drugs from storage unit R003, transporting them to storage unit R053A and placing them in that unit knowing that the purpose of so doing in some way related to their subsequent supply or distribution to others.  But what was the dealing with the remainder of the drugs?

40.  The approach to the “dealing with” limb of the element of “trafficking” suggests that neither the prosecutor nor the judge appreciated that count 1 did not refer to the total quantity of drugs before the removal of the drugs the subject of count 2 but only the remainder of the drugs after that removal. It hardly followed necessarily that if the 1^st applicant was rendering assistance in the trafficking of the count 2 drugs that he was a participant in such trafficking as may have been proved in relation to what was left over; this was simply not addressed by the judge.

41.  But, as previously mentioned, it is not just that part of the summing up where the judge directs on the “dealing with” limb of the trafficking definition, that is of concern; it is also the judge’s directions on the element of the 1^st applicant’s knowledge of what it was, with which he was dealing.  These directions are the subject of complaint in grounds 2 and 4.  Ground 2 focuses upon whether the judge’s directions on what constitutes knowledge were sufficient and whether what was said by the applicant in his video record of interview constitutes an admission of knowledge; ground 4 complains that the oral admission made by the 1^st applicant at the time of his arrest could only be used by the jury as an admission of knowledge in respect of the drugs in the second count and that the direction by the judge wrongly encouraged the jury to make use of it in proof of knowledge on the first count.

42.  The second ground of appeal focuses upon statements made by the 1^st applicant in his video recorded interview in which he admitted to having suspicions about the items that he was being asked to move from storage unit R003 to storage unit R053A.  He admitted that the person Ah Biu had told him that the items he was being asked to move were “something unlawful” but he said in answer to the question “so what were those?”, “I have no idea about that”. On another occasion in the interview the following exchange took place with the interviewing officer:

“Q : Well, you …. you, if you were asked to guess, I mean what did you think was inside?

A : Mm, most probably?

Q : Mm.

A : I guessed it should …. should be co…. cocaine, maybe.

Q : Cocaine, why did you think it was cocaine?

A : Because …. (I) don’t know, I guess.

Q : Yes, that is, I want to ask you, you said …. you guess only, why would you guess it is cocaine but not something else, that is …. that is what I want to know, why?

A : Why (I) guessed (so)?

Q : Mm.

A : (I) don’t know, that is my guess.”

43.  The 1^st applicant argues that this statement by him is not an admission that he knew he was trafficking in dangerous drugs, and argues that the judge should have given a direction that this admission was insufficient, on its own, to establish knowledge by the 1^st applicant that what he was moving from one storage unit to the other were dangerous drugs.  This failure by the trial judge is argued to be particularly important given the error in her direction on the use which the jury might make of his alleged earlier oral admission in reaching a verdict on the first count.  In this oral admission made at the time of his arrest the 1^st applicant said that he had moved cocaine from one cabinet to another.  The judge’s direction in respect of this admission is quoted in paragraph 45 of this judgment.

44.  In respect of ground 2 the judge described the 1^st applicant’s admissions in the video interview and accurately summarised his answers that Ah Biu had told him that the items were something unlawful, that he guessed it should be cocaine but he did not know why he guessed that and on another occasion in the interview that he did not know what they are.  The complaint is not what the judge said but rather what she failed to say in that she did not relate these statements of the 1^st applicant to proof of the element of knowledge and specifically that knowledge required a state of mind more than guessing or thinking something to be so.

45.  Such a direction, it is said, is particularly important when there is nothing about the contents of storage unit R003 to identify them as drugs. They are just two cardboard carton boxes containing what appear to be items wrapped in birthday wrapping paper and then placed in transparent resealable plastic bags.  The 1^st applicant’s evidence was that the drugs he put in the pink plastic bag and took to storage unit R053A were not contained in either of these carton boxes and were just lying on the floor of storage unit R003.

46.  Thus there was a very real issue as to what the 1^st applicant knew of the contents of R003 (the first count) and of the items which he transferred to storage unit R053A (the second count).  The judge should have, but did not, direct the jury that before they could convict the 1^st applicant of either count they had to be satisfied so that they were sure that the 1^st applicant knew that the contents of R003 and of the items he transferred to R053A were cocaine and that mere suspicion of these facts was insufficient.

47.  This brings us to the fourth ground of appeal which focuses on how the judge characterized the oral admission by the 1^st applicant at the time of his arrest.  The judge said:

“In addition to the circumstances of which I have just reminded you, there is, in respect of the 1^st accused, the evidence of his out‑of‑court admissions. The most important part of this evidence is the evidence that he had said – and signed the notebook where he is recorded as having said – that he had moved cocaine from one cabinet to another. If you feel sure that he made such a true admission, you may consider it very powerful evidence against him on each count.” (Emphasis added)

48.  There is a fundamental problem with this direction.  It is that it simply did not necessarily follow that if the 1^st applicant was trafficking in the drugs which he transferred from R003 to unit R053A that he was party to such trafficking as may have been taking place in relation to the large quantity left behind in R003.  It was the 1^st applicant’s case that the drugs he removed were placed on the floor of unit R003 and separate from cardboard cartons of whose contents he said he took no notice.  Given this factual matrix and these assertions by him and given also that it was his case that he was acting under the instructions of the 2^nd applicant in relation to a limited activity, it was incumbent upon the judge to emphasise to the jury that were they to find the 1^st applicant guilty of trafficking in the drugs which he took from R003, they could only properly convict him in relation to the drugs that remained behind if they were sure that he was party to trafficking in those drugs; and that direction in turn required her to tell the jury what it was that would constitute him a party to such trafficking.  This she failed to do.  What she said was this:

“As I have already told you and now remind you, the position is as follows. Quite simply, in respect of each accused on each count, you may find him guilty if you feel sure that he dealt in all the dangerous drugs concerned in the course of the drug trade in that, knowing of the dangerous drugs in the count 1 cabinet, he moved, or cause the moving of, some of them from that cabinet to the count 2 cabinet, leaving the rest of them in the count 1 cabinet.”

49.  This was not, with respect, helpful.  What was the suggested dealing by the 1^st applicant in all the drugs?  Was it his mere presence in cabinet R003, knowing that there were drugs there, other than the drugs he was to remove?  The problem with the summing-up in this regard is that it lacked the specificity and assistance required for a proper and fair assessment by the jury of how the case against the 1^st applicant was put.

50.  This court has emphasized on numerous occasions the importance of both the prosecutor and the judge clearly articulating in trafficking offences that part of the trafficking definition on which criminal liability is based and how that part of the definition is proven by evidence.  Statements of a vague and general nature, such as “the dangerous drugs were being dealt with in the course of the drug trade”, are not helpful to the jury and only tend to distract them from their duty of determining whether and how this element of the offence is proven.  Had there been a more focussed approach to proving the element of trafficking in this case then the prosecutor and the judge may have realized the difficulties which we have identified in proving a dealing with the drugs that are the subject of the first count.

51.  Finally, in respect of both counts the judge failed adequately to direct the jury on the element of knowledge and on the evidence that showed the 1^st applicant knew that the items with which he dealt were dangerous drugs.  In particular the judge failed to contrast with the jury the statement made by the 1^st applicant in his record of interview with the statement made by him at time of his arrest and how the former more qualified statement as to his knowledge impacted upon the first count.

52.  For these reasons we allow the 1^st applicant’s application for leave to appeal, treat the hearing of the application as the appeal, allow the appeal and quash his convictions on both counts.

The 2^nd applicant’s grounds of appeal

53.  The first ground of appeal of the 2^nd applicant is that the judge should have acceded to the submission of no case to answer.  We shall return to this ground later in this judgment.

54.  The benefit that the 1^st applicant receives from the failings in the judge’s directions on how the applicants trafficked in the drugs in respect of the first count by dealing with them also enures to the benefit of the 2^nd applicant.  The case presented against the 2^nd applicant was that he and the 1^st applicant were jointly dealing with the drug.  In respect of both counts the 2^nd applicant also complains of the repeated comment by the judge that only a guilty person, referring to the 2^nd applicant, would wait downstairs whilst the 1^st applicant was transferring drugs from one storage unit to another.  What she said was:

“…. you may ask yourselves whether you think that an innocent person would or might be permitted to …. accompany a person, waiting for him downstairs, while he [ie the 1^st applicant] went to those cabinets containing dangerous drugs.”

55.  It was the 2^nd applicant’s case that he was just helping out a friend, the 1^st applicant, by driving him to the mini-storage premises prior to going to dinner with him.  There is nothing fundamentally incredible or absurd about such an explanation and it cannot follow that merely driving somebody to a commercial storage premises means that you must be involved with what they are storing at those premises.  That, of course, is not to say that the conduct of the 2^nd applicant in driving the 1^st applicant to the mini-storage premises is not evidence of joint enterprise.  It is.  But in the context of this case it does not, on its own, prove joint enterprise.  This comment may have more legitimacy if the 1^st applicant was transporting drugs to the storage premises or taking them away from it.  But in the circumstances of the present case where the 2^nd applicant’s case was that he was to have no contact or other involvement with the drugs it bears no legitimacy at all.

56.  There was, of course, other evidence linking the 2^nd applicant to the offences and of course a judge is entitled to make personal comments to a jury about the evidence which hints at the judge’s view.  Even if the personal comment is inappropriate for some reason that does not necessarily mean that the conviction must be set aside.  The jury will always be told, and in the present case were told, that the facts are for them and that they are perfectly entitled to ignore what the judge says in respect of them.

57.  Nevertheless in a situation where the prosecution case is one of joint enterprise and the jury is wrongly invited to infer from a particular fact alone an accused’s participation in that enterprise and the invitation is repeated on a number of occasions then it becomes more than a personal comment which the jury may ignore and takes on the character of, if not a direction, then at least a very strong suggestion, with all the authority of the judge, as to how the jury should reason their determination of guilt.

58.  For these reasons we grant leave to the 2^nd applicant to appeal against his convictions on both counts, treat the hearing of the leave application as the hearing of the appeal, allow the appeal and quash his convictions on both counts.

Retrial

59.  The offences charged in this case are very serious and there is no justification for not ordering a retrial if the evidence can justify such an order being made.  It can in respect of the 1^st applicant and the second count and we so order.  However, whether it can in respect of the first count requires a closer scrutiny of the evidence.  Whether the evidence is sufficient to order a retrial of the 2^nd applicant requires a resolution of his ground of appeal that at the close of the prosecution case he had no case to answer in respect of both counts.

The 1^st applicant and the first count

60.  As we indicated in discussing his grounds of appeal, there are two issues that are key to his complicity in this offence.  The first is his knowledge of what was contained in the cardboard cartons in storage unit R003 and the second is what was his act of trafficking in relation to the drugs in those cartons. There was in fact no direct evidence that the 1^st applicant had any contact with the cardboard cartons as the only evidence of what he did at storage unit R003 came from the 1^st applicant himself and it was his evidence that the two packets of drugs that he placed in the pink plastic bag were not contained in the cardboard cartons but were lying on the floor of the storage unit by themselves.  His story effectively was that on seeing the two packages on the floor he picked them up, placed them in the pink plastic bag and paid no attention to the cardboard cartons.  On this basis we do not see that there is any evidence to prove that he dealt with the drugs (for the purpose of trafficking) that are the subject of the first charge.

61.  Would the position be any different if the prosecution presented its case, as it originally did, on the basis of possession for the purpose of trafficking either jointly with the 2^nd applicant or on his own, of all the drugs?  Answering this question requires us to consider whether there was evidence from which a jury could infer that the 1^st applicant was in possession of the whole of the drugs that were in storage unit R003 before he removed the two packets of drugs that are the subject of the second count.

62.  The evidence against the 1^st applicant was that he went to storage unit R003 in order to move two items from it to storage unit R053A and carried with him a plastic bag for this purpose.  He said to the police that he had “removed two blocks of cocaine to cabinet no. 53 from cabinet no. 3”.  Storage unit R003 contained nothing else but two cardboard cartons inside which were packets of cocaine packed similarly to the two packets of cocaine which the 1^st applicant removed to R053A.  The top flaps of the cardboard carton boxes were not sealed closed and the presence of similarly wrapped packages in at least one of the cartons was fairly readily visible.  In addition and importantly the 1^st applicant was in possession of a smartcard to the premises and keys to both storage units.

63.  The relevance of the way the cartons were left unsealed has many aspects to it.  It didn’t just make the contents more readily visible it also allowed of the inference that only trusted persons were expected to have access to the storage unit and contributes to strengthening the inference that the 1^st applicant knew of the presence of the other cocaine in the cartons; indeed it allows the inference that, contrary to what the 1^st applicant himself maintained, he actually took the two packages from one of the unsealed cartons and not from the floor of the storage unit.  The 1^st applicant lied in his record of interview when he said that the two items were already in the pink plastic bag on the floor of the storage unit.  If they were not already in the pink plastic bag then it makes it less likely that these two packets of drugs had been removed from the box and placed separately on the floor from the other packets of drugs in the cardboard carton.

64.  All of this evidence, in our view, is more than enough to justify his retrial on the first count and we so order.

The 2^nd applicant

65.  For the 2^nd applicant the evidence is much more circumstantial as neither he nor Jacky Chan can be connected to storage unit R003 which was rented as recently as 2 October 2009, for a period of six months, in the name of a real person who has not been able to be located.

66.  But the 2^nd applicant was associated personally with the mini‑storage facility in that he had rented a storage unit there for his own use.  He was also associated with it on behalf of another in respect of the two units that had been rented in the name of the fictitious Jacky Chan.  These were P138B and R053A and of course the latter storage unit was implicated in the second count.  Furthermore, he had in his possession the smartcard that related to P138B and one of the keys to the padlock that unlocked this storage unit.  By retaining the smartcard he effectively prevented the fictitious Jacky Chan, or the person posing as him, from gaining access to the mini-storage premises.

67.  Additionally, there is, of course, the connection to storage unit R053A as Jacky Chan was the renter of it and the 2^nd applicant admitted that he rented it on behalf of Chan.  He also bought the padlock for it but did not keep the smartcard for it or the keys for it.  Furthermore, documents relating to the payment of rent for both of Jacky Chan’s storage units were found in the 2^nd applicant’s home providing further evidence of his close connection with storage unit R053A.  That connection is tainted by the fact that the 2^nd applicant used a false name and documents when arranging the rental for Jacky Chan.

68.  Apart from the evidence linking the 2^nd applicant to storage unit R053A and the mysterious Jacky Chan there was evidence of:

(i)  his possession of a large amount of cash;

(ii)  his possession of a large number of mobile phones; and

(iii)  his use of a prepaid SIM card to contact the 1^st applicant rather than his subscriber phone.

69.  There was cogent evidence of joint enterprise, namely that:

(i)  the 2^nd applicant drove the 1^st applicant to the mini-storage premises;

(ii)  the frequency of telephone contact between the two applicants shortly before their arrest;

(iii)  the use of the prepaid SIM card by the 2^nd applicant to contact the 1^st applicant; and

(iv)  the use by the 1^st applicant of storage unit R053A in which to place the drugs of the second charge, this being the storage unit with which the 2^nd applicant was closely connected.

70.  Undoubtedly this was a circumstantial case dependent upon the jury drawing inferences adverse to the 2^nd applicant.  We are satisfied that on this evidence the jury would be entitled to draw an inference of guilt and that there was, therefore, a case to answer.  We are also satisfied that the evidence is more than a mere prima facie case and justifies an order that the 2^nd applicant be retried on both counts in the indictment and that is the order we make.

Conclusion

71.  We, therefore, order that both applicants be retried on both counts in a fresh indictment.