HKSAR v. LEE KIN WO

CACC 376/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 376 OF 1999

(ON APPEAL FROM HCCC 345 OF 1990)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 2 July 1999, the Applicant was convicted, following a trial in the Court of First Instance before V. Bokhary J and a jury, of the possession of 1.77 kgs of salts of esters of morphine for the purposes of trafficking therein, contrary to section 7 of the Dangerous Drugs Ordinance, Cap. 134. The Applicant was sentenced to twenty-three years' imprisonment. He now seeks leave to appeal against conviction and sentence.

2. The evidence called by the prosecution related to events which began at about 12.45 a.m. on 18 September 1990. Customs officers saw the Applicant and a man called Lam Kin-choi ("Lam") enter Hiu Ming Court in Sau Mau Ping. The Applicant and Lam came out of flat No. 12 on the 5th floor at about 1.45 a.m. Customs officers identified themselves to the Applicant and Lam but both of them ran away. They were caught after a struggle with the customs officers.

3. Lam was searched and was found to have on him two packets of heroin. He also had the keys to the door of the flat and the grille gate at the entrance of the flat and just over $6,000. Later, the customs officers found in Lam's car $85,600.

4. No drugs were found on the Applicant and he had on him only a small amount of money, but he did have the key to the entrance grille gate of the building where the flat was located.

5. The flat, in due course, was searched. All the dangerous drugs referred to in the count faced by the Applicant were found inside a bag on top of a desk and inside various drawers of the desk in one of the bedrooms of the flat. In effect, the flat was being used to store drugs as well as some paraphernalia used in connection with them because also found in the flat were eight items, each of them revealing a small quantity of heroin on them. These were two top-pan balances, a blender, two sealing machines for sealing packets, some plastic wrappings, a mask and a steelyard. The mask and the steelyard were found in a drawer of the desk and the rest of the items were found in the living room. The glass top of the desk bore a palm print and, additionally, there were other palm prints and a thumb print found on a plastic bag which in turn contained a quantity of caffeine which was found in a drawer of the desk together with two other bags of caffeine.

6. In September 1990, the retail value of this quantity of heroin found in the flat was just over $1,770,000.

7. The Applicant did not give evidence in his own defence.

8. Against that background, Mr Grounds, who now represents the Applicant, has advanced three grounds of appeal. In the first of these, he has alleged that the trial judge made an error of law in that she misdirected, or failed to direct, the jury upon all the elements of possession. What the judge said to the jury regarding possession was in these terms:

"What is trafficking in relation to a dangerous drug? In the context of this case, trafficking includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug. That does not include simple possession, in other words, possession merely for self-consumption. Simple possession is not what the prosecution is alleging in this case."

9. She then went on immediately to say, in the passage which is the subject of criticism in this ground of appeal:

"It is the prosecution's case that the accused, together with Lam Kin-choi, had in their possession the dangerous drugs in question for the purpose of supplying or otherwise dealing in or with the same. In law, 'possession' means more than mere physical possession. By 'physical possession' I mean physical control or custody. That alone does not amount to possession. Possession means having physical possession of a thing plus knowledge that you have it in your physical possession. That is what I mean by possession."

10. The judge then continued by saying this:

"The offence charged here is, as I have mentioned earlier, possession of dangerous drugs for the purpose of unlawful trafficking therein."

She then described what was meant by the word "unlawful".

11. The complaint made by Mr Grounds which arises from this direction is that the judge should specifically have directed the jury that "mere knowledge of the presence of the drugs did not constitute possession". He submitted that from the fact that the Applicant's thumb print and palm prints were found in close proximity to the drugs, possession could not necessarily be inferred and that the judge had failed to direct the jury that there must also be an intention to possess the item. In regard to this last point, he cited as an example that even a person who picked up and examined an object for a short time would come within the judge's definition of "possession" even though the person had no intention to possess that item, and he graphically demonstrated this by picking up the handbag of his instructing solicitor sitting behind him and saying that he had it in his possession without any intention to possess it.

12. In advancing these points, Mr Grounds relied on The Queen and Tam Kim-yee (1995) 2 HKCLR 14 where, at p. 17, Penlington JA stated that:

".... it was essential that the judge specifically direct the jury that mere knowledge of the presence of the drugs did not constitute possession."

13. In Tam Kim-yee, the applicant's defence had been that he was aware of the white powder and other paraphernalia at his address, having discovered that it had been put there by a person he called "Ah Hung". The applicant had asked "Ah Hung" to take the relevant items away. The applicant in that case was convicted of simple possession although he had also been charged with trafficking, a charge which the jury acquitted him upon. In such circumstances, a direction to the effect that it was not enough for the prosecution to establish mere knowledge of the presence of the drugs was obviously required.

14. The position in the present case is a very different one. The charge related to possession for the purposes of trafficking. No alternative verdict of simple possession was appropriate in view of the quantity involved and owing also to the fact that the Applicant's case was advanced on the footing that he had nothing whatever to do with the drugs that were in the premises. This last aspect also makes Mr Grounds' example of someone picking up something to examine it without the intention of possessing it wholly inapt, so that there was no need for the judge to direct the jury, in the particular circumstances of this case, that an intention to possess the drugs had to be proved in explicit terms. It was no more than speculation that the Applicant might have seen the drugs and innocently touched the bag of caffeine.

15. However, the matter does not end there. The judge went on to deal with "possession" more specifically than in the general direction that she had given which has already been cited. Turning now to page 7 of the summing up, the judge went on to say this:

"Having dealt with the concepts of 'possession' and 'unlawful trafficking' in fairly general terms, I direct you in the context of this case, that if you are sure that the accused was engaged in storing the dangerous drugs the subject-matter of the count in the premises named in the count, then you are entitled to find that he was in possession of them. And if you are sure that he was storing them there for the purpose of unlawful trafficking, then you are entitled to find that he was in possession of them for the purpose of unlawful trafficking, and find him guilty as charged.

The accused denies that he had anything to do with any dangerous drugs. There is no suggestion by or on behalf of the accused that he had or might have had something to do with the dangerous drugs but had or might have been acting in accordance with the Dangerous Drugs Ordinance or a licence issued thereunder. So if you conclude beyond reasonable doubt that he did possess the dangerous drugs the subject-matter of the count for the purpose of trafficking therein, then you may have no difficulty in concluding beyond a reasonable doubt that such trafficking was done unlawfully."

16. Implicit in trafficking is that a person knows in what it is that he is trafficking. That had been made plain in the earlier directions of the judge. The judge then went on to remind the jury of what suggestions had been made on behalf of the Applicant during the course of the trial. She said:

"Your only concern with Lam arises out of your need to consider the suggestion made on behalf of the accused by his counsel to the effect that Lam alone was guilty in respect of these drugs to the exclusion of his client the accused. In this connection, you remember all the points made by the accused's counsel, including the fact that Lam had the keys to the door of the flat as well as the grille at the entrance to the flat whereas the accused only had the key to the grille at the entrance to the building; that $6,446 was found on Lam; that nothing more than a few dollars were found on the accused; that two packets of drugs were found on Lam's person; that no drugs were found on the accused's person; that $85,600 was found in Lam's car; and that there is no evidence of that kind against the accused.

Defence counsel is right in saying that there is no such thing as guilt by association. The prosecution cannot - and has not - asked you to convict the accused by reason of any association with Lam Kin-choi. Defence counsel is also right in saying that you are not concerned with the likely penalty in this case ...."

17. Whilst in the passage I have just cited, there is no explicit reference to the need for an intention to possess, which may by itself be a concept that is not wholly clear to a jury, the judge's directions implicitly stated that such an intention had to be established.

18. In a subsidiary point which arose during the course of argument, Mr Grounds suggested that the judge had in effect put the cart before the horse by directing the jury that they should first consider whether the drugs were for the purpose of trafficking before deciding that the Applicant was in possession of them. The passage is to be found at p. 11:

"The prosecution invites you to find all these primary facts proved beyond reasonable doubt. And on such primary facts, the prosecution invites you to say that the only reasonable inferences in all the circumstances are: first, that the dangerous drugs the subject-matter of the count were for the purpose of trafficking and, secondly, that the accused was in possession of them for that purpose. If you are sure of those primary facts and of those inferences, then you may convict the accused as charged."

19. Mr Grounds' point is that this may have led the jury perhaps to have felt that if the Applicant had knowledge of the drugs, having already found that they were for the purposes of trafficking, they may have jumped to the conclusion that the Applicant was in possession for the purposes of trafficking. We disagree with this proposition. In this case, the fact that the drugs were for trafficking was never really in dispute although it was still a matter for the jury to determine. The real question was whether the Applicant was in possession of them in the sense that the judge had already directed the jury.

20. The prosecution's case was by no means limited to the evidence of the Applicant's palm and thumb prints being found in the room where the drugs were discovered. The bag on which the Applicant's prints were found was a bag full of caffeine. The Applicant carried a key which opened the entrance grille to the building. Leaving aside the Applicant's attempt to run away from the scene before his apprehension, the inferences to be drawn, following a visit of about an hour to the flat containing such a valuable consignment of drugs late at night, in the company of Lam who was carrying two packets of heroin on arrest, were very strong indeed.

21. We consider that in the circumstances of this particular case, the directions as to possession were more than adequate and, furthermore, that they had been very helpfully set out by the judge so that the jury should know precisely what it was that had to be proved.

22. This ground of appeal, therefore, fails.

23. Turning to the second ground, it was submitted that the judge misdirected the jury when she said (at p. 2S):

"When counsel cross-examines a witness, he may put or suggest things to the witness. Things so put or suggested are not themselves evidence. Of course, it is legitimate for counsel to put things or suggest things to other side's witnesses to test their evidence, to probe it and to see whether the witnesses will agree with counsel. All of that is legitimate. If and to whatever extent a witness agrees with something put or suggested by counsel, then that witness's agreement constitutes evidence.

But unless the witness agrees, then nothing put or suggested by counsel is of itself evidence in any shape or form whatsoever. An example is defence counsel's suggestion that the doors to the bedrooms were locked with which one of the customs officers disagreed, one said that he did not know, and one said that he could not remember but that it was possible."

24. Mr Grounds suggested that the denials of a witness could still throw light on the credibility of witnesses especially when the witnesses gave differing answers. What Mr Grounds has said is no doubt right up to a point, but it more or less accords with what the judge effectively told the jury. However, it has also to be said that the issue was of very little significance in the trial as the judge had correctly gone on to deal with the evidence of the Applicant's prints having been found in the very room where the drugs were found. In fact, the issue relating to whether the doors of the room were or were not locked was neither here nor there because, of course, the Applicant's fingerprints were found in that room.

25. We reject this ground of appeal.

26. There was a third ground of appeal which states that the conviction recorded against the Applicant was rendered unsafe and unsatisfactory by reasons of the matters set out in the previous ground coupled with the judge's direction to the jury that circumstantial evidence can be even more powerful than direct evidence. The passage which is referred to is on p. 13L where the judge directed the jury:

"Circumstantial evidence can be powerful evidence, indeed, it can be as powerful as or even more powerful than, direct evidence, but it is important that you examine it with care - as with all evidence - and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt beyond reasonable doubt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case."

27. The direction was as sensible as it was correct, and there is nothing in this point.

28. The application relating to conviction is dismissed.

29. We turn now to the application relating to the sentence of twenty-three years' imprisonment which the Applicant is presently serving.

30. In advancing this application, the Applicant was unrepresented. He complained that the sentence of twenty-three years was manifestly excessive. He expanded in court upon this by explaining that the other man with whom he was arrested called "Lam" was sentenced in 1992 to only six years' imprisonment. As it transpired, this was in respect of the drugs found in Lam's possession on arrest. He was never prosecuted for the much larger quantity which customs officers had found in the flat which was the subject-matter of the Applicant's trial and conviction.

31. The reason Lam received six years' imprisonment was touched upon in the speech in mitigation made by Mr Egan at the conclusion of the Applicant's trial before V. Bokhary J. It amounts to this. What used to enable the prosecution to say that possession was presumed from the possession of a key to premises containing drugs, subject to the defence proving otherwise, could in 1992 no longer be relied upon. Because of this, a decision was taken in the then Attorney General's Chambers that there was insufficient evidence to prove possession of the drugs in the flat on the part of Lam.

32. Whether this decision was right or wrong does not matter for present purposes. The fact remains that Lam was not prosecuted on the count upon which the Applicant was convicted. That being so, the grievance the Applicant in a sense might understandably feel at Lam not having been prosecuted is something which has not given rise to any disparity in the sentences between the Applicant and Lam. There is no disparity because Lam was never liable to be sentenced for the drugs in the flat.

33. No doubt the Applicant was proceeded against because his fingerprints were found inside the flat which enabled the prosecution to say, together with other evidence that the prosecution had against him, that there was sufficient evidence on which to proceed against him. Accordingly, as no disparity in sentence has arisen, there is no ground to interfere on this basis.

34. The Applicant jumped bail on 25 February 1992 as the papers, on closer examination, revealed. For a case of such gravity as this, it is extraordinary that he had ever been granted bail in the first place. In any event, he was never seen again by the authorities until his re-arrest on 5 January 1999. The offence for which he is now serving a sentence was committed on 18 September 1990, which was some months after the guidelines which were given by the Court of Appeal in The Queen v Lau Tak-ming (1990) 2 HKLR at 370 which, for the purposes of this case, provide the sentencing guidelines for offences of trafficking in heroin. The sentence imposed by V. Bohkary J was well within the proper bounds for the large quantity of drugs involved in this case.

35. Accordingly, we must dismiss this application.