HKSAR v. LAM HING CHIT

CACC 278/2017

[2020] HKCA 125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 278 OF 2017

(ON APPEAL FROM HCCC 75 OF 2017)

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J U D G M E N T

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1.  The applicant was charged with one count of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  The applicant, represented by Mr Jackson Poon of counsel, pleaded not guilty to the count and stood trial before Deputy High Court Judge Andrew Bruce SC (“the judge”) and a jury in the Court of First Instance.  The count pleaded that the applicant, between a day unknown in August 2015 and 4 September 2015, conspired with Lui Mei Yi and other persons unknown to traffic in ketamine.

3.  On 2 August 2017, the applicant was convicted by the verdict of the jury of this count and subsequently sentenced to 26 years’ imprisonment on 9 August 2017.

4.  On 7 September 2017 the applicant applied out of time for leave to appeal his conviction.  In support of his application he filed an affirmation saying that he was late in doing so as he was placed in solitary confinement at that time. 

5.  At the hearing on 28 August 2019 I granted the application for an extension of time and granted leave to amend the grounds of appeal.  The application for leave to appeal was then adjourned to 10 January 2020.  On that date I reserved my judgment on the application for leave to appeal. This is my judgment.

The prosecution case

6.  At about 1545 hours on 4 September 2015, shortly after receiving a carton box from a delivery truck driver, Miss Lui Mei Yi (“PW4”) was arrested by the police for the offence of drug trafficking at Sham Shui Po. The carton box contained 2,976 grammes of ketamine, and 82.6 grammes of ketamine was found in the handbag that she was carrying at the time of the arrest.  Subsequently, she was taken back to her home at Lam Tin for a house search where a bag containing 3,147 grammes of ketamine in wrappings, some transparent resealable plastic bags, one spoon and one electronic scales were located and seized.  The street value of the ketamine seized was HK$1.26 million.

7.  PW4 was charged with, and pleaded guilty to, 3 separate counts of trafficking in dangerous drugs.  On 14 July 2016, She was sentenced to a total term of 16 years’ imprisonment. 

8.  A total of 18 fingerprints and 1 palm print belonging to the applicant, and 1 fingerprint belonging to one “Ye Ming Zhu” were found on the sticky side of the adhesive tape wrappings of the carton box.

9.  The main witness for the prosecution was the named co-conspirator Lui Mei Yi who was PW4 at trial.  She testified under an immunity from prosecution.  She said she had met the applicant about a year prior to becoming involved in the present offence, when she was out with friends at a bar in Tsim Sha Tsui.  Over time, she came to believe that the applicant was a drug trafficker, as there were occasions when he supplied her with ketamine, without charge, in the course of their social gatherings. She said she knew the applicant by the nickname “Kit Chai”.

10.  PW4 said that at some stage she asked the applicant if she could work for him and he finally agreed to put her on trial, in or about July or August 2015, supplying ketamine to his clients.  She started out working 1 day a week, on Sundays only, and then progressed to several days a week. At this stage PW4 did not know an associate of the applicant by the name of “Fu Chai” and did not know of any involvement by the applicant and “Fu Chai” in importing ketamine from the Mainland.  To PW4 the applicant was simply a retail supplier of ketamine to drug users.  He would give her a quantity of packets of ketamine that were in two sizes.  The large packets contained 2.85 grammes of ketamine and the small packets contained 1.5 grammes of the drug.  The applicant also gave her a phone on which she would receive calls from his customers.  She would then make deliveries of the drug and receive payment in accordance with whatever arrangements were made with each user.  PW4 knew the applicant employed others to do the same job as she when she was not working for him.

11.  At some stage the applicant asked PW4 if she “would like to help with the delivery of a large parcel of 250 grammes.”[1] This progressed when the applicant introduced PW4 to “Fu Chai”.  Although not particularised in the count as a co-conspirator it was clear from PW4’s evidence that he was one and was, most probably, the key person in the delivery of these parcels.  PW4 said she thought he was in charge of the 250 grammes parcels.  She said she worked for “Fu Chai” on two occasions to receive a greater reward.  The second occasion was when she was arrested.

12.  She testified that “Fu Chai” once told her that the applicant was involved in the packing of these 250 grammes parcels of drugs in the Mainland.  She said she knew the applicant would go to the Mainland but she could not recall him ever saying anything to her about what he did there.

13.  On 3 September 2015 at about 11 pm, she joined “Fu Chai” in Mong Kok and waited for the applicant in a McDonald’s restaurant.  After receiving a communication from the applicant to meet him elsewhere she then went to meet him at the staircase of a building.  Fu Chai was waiting nearby as a lookout.

14.  She said that at that staircase the applicant gave her a bag which she subsequently discovered contained ketamine and promised her $1,000 for looking after it.  She took the bag, walked down the stairs, met “Fu Chai” briefly and then took a taxi home.  She placed the bag in her room and went to bed.  This was the bag containing ketamine that was seized by the police from her home during the house search following her arrest.

15.  She said on the day of her arrest, 4 September 2015, she went to Nam Cheong Street, Sham Shui Po to take delivery of the carton containing the 250 grammes parcel of ketamine after both the applicant and “Fu Chai’ had separately reminded her to do so.  She gave $120 to the truck driver when she collected the carton and was thereupon arrested.  She said “Fu Chai” was waiting in the shadows, but fled the scene once she was arrested.

16.  She said she was the owner of the mobile telephone number “61831321” which she used to contact “Kit Chai”, the applicant. She said the applicant was the owner of the mobile telephone number “53779774”, which she was able to identify to the police after her arrest as it was recorded against the name “Kit Chai” in the contents list of her smartphone.  It was part of the prosecution case that the immigration record of the applicant leaving and entering Hong Kong was consistent with the record of roaming calls made by the number “53779774” and therefore it went to circumstantially support PW4’s testimony that the applicant was in fact “Kit Chai”.   

17.  The prosecution also relied on a letter, written to PW4 by the applicant dated 24 March 2016, which became Exhibit P164, to show that he had demonstrated an awareness of, and a willingness to participate in an attempt to dispose of the ketamine in PW4’s home. In the letter, the applicant wrote:

“…On the day when you were busted, ‘Fu Chai’ called me once he saw you being busted to ask me to help you tidy up the house. At that time, I was at Ken’s house and Ah Ting was also there. I contacted [PW1’s sister] immediately … However your younger sister claimed that (she) had to take leave and got stuck in a traffic jam. In the end, she arrived after two hours. Once (we) were upstairs, (we saw that) your home was being kicked….”[2]

The defence case

18.  The applicant elected to give evidence but called no witness.  The defence case was that he was not involved in a drug trafficking conspiracy as a co-conspirator to PW4 or “Fu Chai”, save that from time to time he bought drugs from them purely as a customer for his own consumption.  He described “Fu Chai” and PW4, as “ordinary friends”.  He said “Fu Chai” was his principal supplier, but on subsequent occasions he did contact PW4 directly for supply.  He denied that he had ever been involved in arranging for PW4 to sell drugs in Mong Kok nor did he have any knowledge of the drugs found in PW4’s home.

19.  He said on 2 September 2015 he went to the Mainland and met up with three other persons.  He said all of them went to the premises of a logistics company where, initially, he waited in the vehicle.  Later, one of the three asked him to assist them to prepare strips of adhesive tape, which might explain how his fingerprints came to be on the sticky side of the adhesive tapes which wrapped the package containing the packets of dangerous drugs.  He said he did not know he was handling dangerous drugs at that time, and that he was just a victim of circumstances.

20.  He said on 4 September 2015, “Fu Chai” called him and requested his assistance in arranging the tidying of PW4’s house.  He said it was probably because “Fu Chai” knew that he also had the number of PW4’s sister.  He explained in court that by “tidy” he meant going to the home of PW4 in order to get some clothing and other personal things that she might need after her arrest.  He said he merely intended to help by getting others to go to PW4’s home and denied that he actually went himself[3].

Contested applications at trial

21.  The admissibility of two pieces of evidence was contested.  The first was the hearsay statement of “Fu Chai” that the applicant was involved in packing drugs on the Mainland.[4] The prosecution asserted that this statement was admissible as an act or declaration in furtherance of the conspiracy and this the judge ruled. 

22.  The second was the letter which the prosecution asserted was written to PW4 whilst she was incarcerated awaiting trial.[5]  The judge ruled this letter admissible.

The application for leave to appeal against conviction

23.  The applicant was unrepresented in the leave application hearing.  In submissions which were written by a fellow prisoner, and which the applicant adopted, he raised the following 12 grounds of appeal:

(1)  As the evidence adduced by the prosecution supported the existence of more than one conspiracy, the single conspiracy count against the applicant is bad for duplicity, and in any event the judge failed to direct the jury properly on the existence of multiple conspiracies.

(2)  The prosecution’s laying of a count of conspiracy instead of a substantive trafficking count against the applicant was an abuse of process.

(3)  The judge erred in failing to direct the jury that they could not convict the applicant of the conspiracy offence if PW4 and/or the applicant himself were the “intended victims of the offence” pursuant to section 159B(2)(c) of the Crimes Ordinance, Cap 200.

(4)  The failure of the prosecution to specify “Fu Chai” and/or “Ye Ming Zhu” in the conspiracy charge against the applicant constituted a material irregularity.

(5)  PW4’s testimony regarding the uncharged acts of drug trafficking and/or handling of dangerous drugs by the applicant prior to the present offence was inadmissible in law, and in any event the judge failed to properly direct the jury on those uncharged acts.

(6)  The judge erred in failing to direct the jury that even if the applicant was shown to have a bad character by the letter P164, it did not mean that he was guilty of the offence charged, and in any event failed to give adequate directions in respect of the letter.

(7)  The judge erred in allowing the prosecution to adduce hearsay evidence through PW4 as to what “Fu Chai” said the applicant had done, which constituted a material irregularity.

(8)  The judge erred in failing to direct the jury in terms of Specimen Direction 10B that the guilty plea by PW4 on a previous occasion was irrelevant to the applicant’s guilt.

(9)  The judge’s repeated use of “may acquit” instead of “must acquit” was wrong and contrary to Specimen Direction 2.2.

(10)  (A)  The judge erred in highlighting to the jury that PW4 was liable to prosecution unless she gave “full and true evidence” under the immunity agreement, which was prohibited and constituted a material irregularity;  

      (B) The judge erred in directing the jury that the mandatory court order that PW4 pay compensation to her victims was capable of “ameliorating” PW4’s previous convictions for fraud;

(11)  The judge erred by misrepresenting the evidence that “the accused took possession of the carton” in the summing-up was in a manner materially prejudicial to the applicant.

(12)  In addition to the above grounds, there is a lurking doubt in respect of the applicant’s conviction by reason of the prosecution’s failure to adduce evidence to prove that the applicant was the user of “53779774” and, accordingly, was “Kit Chai” in PW4’s evidence.

Discussion

24.  I have considered all of the complaints and do not find that any of them other than the first and fifth complaints could form the basis of a reasonably arguable ground of appeal.  I shall briefly explain why I have found no merit in respect of the remaining grounds of appeal.

The second ground of appeal

25.  It was not an abuse of process for the prosecution to lay a charge of conspiracy instead of the substantive offence of trafficking against the applicant as on the facts of this case the most effective means of demonstrating the complete culpability of the applicant was a conspiracy charge. 

The third ground of appeal

26.  It was clear from PW4’s testimony that she was a willing participant in the applicant’s drug trafficking activities.  The argument that as a user of drugs she became a victim of the conspiracy and was therefore within section 159B(2)(c) of the Crimes Ordinance, Cap 200 is legal nonsense.

The fourth ground of appeal

27.  It is an irregularity for the prosecution to lay a charge against a defendant of conspiring with “others unknown” when the prosecution is able to identify those others and in the course of proving its case intends to lead evidence showing that those identifiable others are co-conspirators.  The giving of particulars in a charge is an important means of ensuring that a defendant knows the case he has to meet.  Requiring the prosecution to give particulars of its case is one of the tools available to a court to secure the fairness of the trial.  Here, particulars were not sought because none were needed.  The applicant and his counsel knew very well the ambit of the conspiracy and who it was the prosecution was alleging were members of it.  The irregularity here was not material and the contrary is not reasonably arguable.

The sixth ground of appeal

28.  In respect of the letter, Exhibit P164, no special direction was required. The letter was not adduced on the basis of similar facts, bad character or propensity but merely to show that the applicant’s willingness to assist with “tidying up” PW4’s flat was further evidence of his involvement in the conspiracy.  The applicant testified on this issue and it fell to the jury to determine what probative value they would give to the letter.

The seventh ground of appeal

29.  The hearsay statement of “Fu Chai” was fully contested and the judge delivered a detailed ruling on it.  I have considered that ruling and can find no error in it.  On the evidence it was open to the judge to find that “Fu Chai” was a co-conspirator and that his statement in respect of the applicant was an act or declaration in furtherance of the conspiracy.  I am satisfied that the judge correctly directed the jury in line with the Specimen Direction and I detect no error in what he said.

The eighth ground of appeal

30.  Specimen Direction 10B is not intended for the situation of a co-accused who, after pleading guilty, agrees to testify for the prosecution. In this situation the issue is whether the co-accused is falsely implicating the defendant in order to obtain a sentencing benefit for herself.  That requires special directions from the judge and here all the necessary cautionary messages in respect of the evidence of PW4 were conveyed to the jury by the judge.

The ninth ground of appeal

31.  The judge’s comments must be read in context.  When that is done there could have been no misunderstanding by the jury of the burden or standard of proof and the reasoning process by which they reached their verdict.

The tenth ground of appeal

32.  (A)  There is nothing in the complaint that the judge erred in telling the jury the terms of the immunity agreement for PW4.  The jury had to know the benefits that would accrue to PW4 from fulfilling the terms of this agreement.

      (B)  In respect of PW4’s payment of court ordered compensation to the victims of her frauds the judge was clearly doing no more than leaving to the jury the question whether this told them anything about her character when they came to decide whether she was telling the truth in this case.

The eleventh ground of appeal

33.  The error by the judge in describing the evidence as being that “the accused took possession of the carton” was clearly a slip of the tongue when he referred to the accused and not PW4.  The jury would not have been caused to misapprehend the evidence on this point as it was never the prosecution case that the applicant was present at the handing over of the carton.

The twelfth ground of appeal

34.  There was no lurking doubt in this case.  Once the jury accepted the evidence of PW4 a conviction was inevitable.  Whether to accept her evidence and what weight they should give to different parts of it were for the jury to decide.  The evidence of the phone calls was part of her evidence. 

The first and fifth grounds of appeal

35.  The judge directed the jury on the conspiracy count as follows:

“ As I say, it is a criminal offence for two or more persons to agree with one another to commit an offence. An agreement to commit an offence is called a conspiracy, and the prosecution have to make you sure, one, there was an agreement between the accused and at least one other person to unlawfully traffic in dangerous drugs. That could be Lui Mei-yi; it could be ‘Fu Chai’; there may be more. That does not matter. There has got to be at least two. Two is fine, one is not a conspiracy.

That agreement between the accused and at least one other person was that they should proceed to unlawfully traffic in dangerous drugs. At the time that the accused agreed to unlawfully traffic in dangerous drugs, the accused intended that this should occur and that he would be a party to the trafficking in those drugs. In agreeing with at least one other person to traffic in dangerous drugs, it may be that the parties to the conspiracy had different roles. A conspirator, and that includes the accused, may have more than one role. In this case, if what she says is true, Lui Mei-yi told you that she sold on a retail basis, and later she stored drugs, and we heard her talk about packing drugs, and finally receiving drugs on the last stage of an import chain from the mainland to Hong Kong.

Each of those is trafficking in dangerous drugs, but as you will see, over time, if you accept her as true, she had a different role at different times. Similarly, if Lui Mei‑yi is to be believed, the accused provided ketamine for her to sell on what I might call a retail basis. She also says that the accused asked her to store what appears to be a substantial quantity of drugs. If you accept her evidence as true, then the accused’s passing the drugs to her for her to sell retail would be involved in supplying the drugs and also storing them. She would be involved in storage. Then it would be also open for you to conclude she was picking up drugs for another person by the name of ‘Fu Chai’ and possibly the accused - we will come to that in a minute - and that the accused was also packing drugs in the mainland.

If that was true, then the accused has another role: packing. What is important, members of the jury, is whether you are sure that there is an agreement - that the accused agreed with Lui Mei-yi to traffic in dangerous drugs, even if that changed or developed over time. That is the critical question. They may have different roles at different times. That really does not matter. What matters is the agreement. If the conspirators do not actually carry out their agreement or do not carry out the agreement at all, that does not matter. What matters is the agreement.

Further, members of the jury, a conspiracy such as a conspiracy to unlawfully traffic in dangerous drugs might start with one form of agreement and alter its scope or nature as things develop. If you were to accept as true the testimony of Lui Mei‑yi, you might think that if there was a conspiracy to unlawfully traffic at the beginning, it related to the retail aspect of it. As I say, if you accept her evidence as true, then that plainly changed, and the nature of the conspiracy changed.

Now, members of the jury, I am sure it will be coming as no surprise to you that it would be pretty rare for people involved in an unlawful conspiracy to sit down and formally agree to traffic in dangerous drugs. Even more rarely do you ever see a written agreement to do something unlawful. The most common way in which criminal conspiracies are proved is by looking at the activities of the people who are the co-conspirators and see whether you could draw an inference from their activities that they were actually in a criminal conspiracy. You might not see the agreement, but you might see what they do, and from their activities you might conclude - it is up to you - that they were in such a conspiracy.

Applying that to our present case, if Lui Mei‑yi is to be believed, she actually asked the accused to join him in trafficking in dangerous drugs. Again, if she is believed, it looks like the accused did not agree to her proposal straight away. However, again, if you believe her, there came a time when he did agree.

It would be open to you to infer from that point on there was a conspiracy to unlawfully traffic in dangerous drugs. Indeed, that would be so even if nothing further had happened. However, according to Lui Mei-yi, she went on to sell dangerous drugs - that is, traffic in them - with him supplying the drugs for her and her receiving 10 or maybe 15 per cent of the proceeds.

So at least as far as that part of the conspiracy is concerned, if you believe Lui Mei-yi, it is pretty explicit evidence from which you could infer an agreement.

However, you can only infer an agreement that Lui and the accused had entered into a conspiracy to traffic if that was the only reasonable inference - the same test we talked about before - and for that, you would have to look at the proved facts and, if you believed her, that would be, for the most part, her testimony.

Another way of establishing a conspiracy to unlawfully traffic in dangerous drugs is to look at what they did, and in that regard, you could look at, for example, the handing over of the drugs to store, the keeping of the scales, the spoon, the empty packets and so on. She also was involved in other activities which we will come to in a moment.

But the key is the agreement to traffic in dangerous drugs, and I have talked a little bit about how you might prove it. I have talked a little bit about how that conspiracy may not be exactly the same. For example, if you said yes, they started on a retail basis, but it changed to something else, you could not say, well, they are not guilty because it changed. You decide the nature of the conspiracy, and it may develop as time goes on.

The next element we need to consider is the element of trafficking. Under our law, trafficking in dangerous drugs is defined by the Dangerous Drugs Ordinance. There is a wide range of activity which our law defines to be considered as trafficking, and they include importing into Hong Kong, procuring a dangerous drug, supplying a dangerous drug or otherwise dealing in or with the dangerous drug or even simply possessing it for the purpose of trafficking.

I have not given you the complete list. What I have done is tried to keep it simple so that I can just list the ones which are possibly relevant in this case.

Selling dangerous drugs on a retail basis would be trafficking. If the seller got those drugs from somebody else in order to sell, that would be supplying or dealing in or with the drugs. Handing over drugs from one person to another so that they may store them, that is trafficking. Storing the drugs would be trafficking. Receiving a parcel from outside Hong Kong which contained dangerous drugs, if you knew that dangerous drugs were in the parcel, would be also a form of trafficking.

What is critical is whether it is proved that Lui Mei‑yi agreed with the accused to do those things.”[6]

36.  In my view it is not reasonably arguable that the count is bad for duplicity but it is reasonably arguable that the judge failed to direct the jury properly on the existence of multiple conspiracies.  In my view it is reasonably arguable that the evidence of PW4 proved she was a party to two separate conspiracies.  The first was a conspiracy with the applicant to help him sell ketamine at a retail level to his existing network of drug using customers.  This was a conspiracy in which “Fu Chai” was not proven to be a participant.  

37.  The second conspiracy was a conspiracy to import ketamine into Hong Kong from the Mainland.  This was a conspiracy between the applicant and “Fu Chai’ into which PW4 was recruited to take delivery of the drugs from the logistics company that transported the drugs over the border.

38.  The count in the indictment concerned the second conspiracy.  The judge portrayed the evidence as revealing one single conspiracy whose nature changed.  It is reasonably arguable that this was incorrect and that the judge should, at the very least, have left to the jury the issue of whether there was one evolving conspiracy or two separate conspiracies. 

39.  If there were two separate conspiracies then the first was a conspiracy to traffic in ketamine with the applicant and others unknown, but this was not the conspiracy with which the applicant was charged.  Evidence of this retail sales conspiracy with the applicant was led in order to show how PW4 came to know the applicant, how she came to be involved in drug trafficking with him and how she came to progress in her trafficking activity to become a co-conspirator with him in a more serious drug trafficking conspiracy.  This much more serious drug trafficking conspiracy was the second conspiracy that is the subject of the charge and it is a conspiracy to traffic by importing ketamine from the Mainland.  The key conspirator in this conspiracy was the person called “Fu Chai”.

40.  If there were two separate conspiracies then that, arguably, would require the jury to be directed on the use they may make of the evidence of PW4 in respect of the first conspiracy which, arguably, may fall into the category of evidence of uncharged acts.  I do not regard as reasonably arguable the complaint that the judge erred in allowing PW4 to testify to these uncharged acts. 

Disposition

41.  For these reasons I grant the applicant leave to appeal his conviction on the first and fifth grounds of appeal to the extent set out in this judgment.  I also grant an Appeal Aid Certificate to the applicant so that he may have legal representation to argue these grounds.

[1] Appeal Bundle, page 78H-I.

[2] Appeal Bundle, page 220.

[3] Defence also relied on the investigation report of the police to show that at some time after the police arrived at PW4’s home, her sister and a “Ye Ming Zhu” did actually turn up. They were searched and let go.

[4] See paragraph 12 ante.

[5] See paragraph 17 ante.

[6] Appeal Bundle, pages 7L – 10T.