HKSAR v. LIEW TEK-CHOON AND ANOTHER

CACC 182/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 182 OF 2009

(ON APPEAL FROM HCCC NO. 8 of 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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

1. Each applicant was convicted after trial by a jury before Deputy High Court Judge Longley on 19 May 2009 of two separate counts of trafficking in the same dangerous drugs, namely 7804.31 grammes of a solid containing 4976.83 grammes of cocaine, contrary to s. 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (the Ordinance). The first applicant was sentenced to undergo imprisonment for 24 years and the second for 26 years. Each sought leave to appeal conviction and sentence.

2. At the conclusion of the hearing we allowed each application by the first applicant, treated the hearing as the appeal proper, dismissed the appeal against conviction but allowed that against sentence and substituted a sentence of 23 years imprisonment. We dismissed both applications of the second applicant. We indicated that we would give our reasons later. We now do so.

The facts

3. On 31 May 2008 the first applicant arrived in Hong Kong by air from Amsterdam having commenced his journey in Suriname. He had with him a black suitcase. Shortly after 9:30 AM he was intercepted by a customs officer. He was asked to open the locks on the suitcase, two of which were operated by a key and the third a combination lock. The two locks operated by a key had not been locked and he was able to open both. He professed to know the combination necessary to open the third lock but was unable to open it. The lock was forced. Inside the suitcase were found four briefcases as well as items of clothing. The thickness of the lining of the briefcases, and their weight, aroused the customs officer’s suspicions: he cut into the lining which was found to contain some of the cocaine which formed the subject matter of the charges.

4. The first applicant was arrested and cautioned. He responded: "I did not touch these briefcases, nor did I know anything was inside. After I arrived in Hong Kong, I would call to Malaysia, 0163861181, in order to contact a male by the name of Donny in order to handle these briefcases". It was these events that gave rise to the charge against him. The first applicant subsequently asserted to a customs officer and  in a video recorded interview that he had believed that he was carrying diamonds.

5. The first applicant agreed to participate in a controlled delivery operation. He had on his person the business card of a guesthouse. He and a number of customs officers checked into a room there around noon. The first applicant made some 26 telephone calls under the direction of a senior customs officer in connection with handing over of the suitcase containing the briefcases. At approximately 8:45PM that day a black male, later identified as the second applicant, knocked on the door of the room: the first applicant opened the door and the second applicant asked him, in English, whether he was from Malaysia. The first applicant replied in the affirmative: the second applicant departed.

6. At approximately 9:45 PM the second applicant returned. He told the first applicant that he had "... come to collect the four bags". Inside the room he asked the first applicant to open the suitcase: the first applicant replied that he did not have the key. After making a telephone call the second applicant stated "No key. I take it". The suitcase was moved from a bed, where it had been placed, on to the floor: the second applicant was about to leave the room dragging the suitcase with him when the customs officers, who had been observing the events from a bathroom which formed part of the room, emerged and arrested him.

7. In a subsequent video recorded interview the second applicant asserted that he had been a fellow guest in the guesthouse, about to enter his own room when the first applicant had peered out of the room which he was occupying and gestured to him to approach: he did so. The first applicant had pointed out the suitcase on the bed and, by gestures, had given him to understand that he, the first applicant, required assistance in lifting the bag off the bed. He had assisted him and it was then that the customs officers emerged from their place of concealment before pushing him to the floor and arresting him. He denied that he had taken possession of the suitcase, had any connection with the first applicant or had any knowledge of the presence of the drugs.

THE APPLICATIONS IN RESPECT OF CONVICTION

8. The judge carefully and, in our view correctly, identified the issues which the jury needed to resolve as being, in the case of the first applicant, "... whether he knew that there were drugs in the suitcase" and in the case of the second applicant "... firstly, whether he entered the room in order to collect the suitcase or the briefcases; secondly, whether he had actually taken delivery of them at the time he was arrested and was in the course of taking them out of the room; and thirdly, if [the jury was] satisfied of the first two things, whether he knew that the suitcase contained dangerous drugs."

9. The first and second issues identified in respect of the second applicant were matters which were to be determined as primary facts on the evidence which the jury had heard, whilst the common issue, as to whether each applicant knew that the suitcase contained dangerous drugs, would be determined by way of inferences to be drawn from the primary facts proved. The judge explained, correctly, to the jurors how they should approach the drawing of inferences.

The first applicant's grounds of appeal against conviction.

Ground 1:  (A) That in the light of the evidence presented in this case, the trial judge failed to direct the jury adequately as to what the prosecution had prove and how they were to prove knowledge of the appellant (sic) as to his possession of the dangerous drugs.

(B) The trial judge also failed to direct the jury adequately as to the evidential effect of his claim after arrest and later when interviewed that he did not know that he was carrying dangerous drugs.

10. This ground was predicated on the basis that the trial judge failed to give the jury a direction in the terms suggested by Stock JA in HUNG Chan Wa and Ano. v HKSAR (2005) 3 HKLRD 291, at §144(4). The fundamental difficulty facing the first applicant in regard to this approach was that it presupposed that the prosecution relied upon a presumption created by s. 47 of the Ordinance, for the directions suggested by Stock JA related specifically to such a situation. This can be seen from the second sentence of §144 which reads:

"…We suggest that in cases where either presumption under s. 47(1) or (2) has been engaged, the following principles should be applied:..."

and which then sets out four separate principles, the fourth being that upon which the first applicant relied.

11. There was never any suggestion, at any stage in the course of this trial, that the prosecution sought to rely on s. 47 of the Ordinance. The prosecution relied entirely upon the circumstantial evidence and invited the jury to infer that the first applicant knew he was in possession of dangerous drugs. The judge left the matter to the jury on that basis, giving them appropriate and adequate directions in that connection. The jury accepted that invitation. The principles espoused in HUNG Chan Wa were therefore of no applicability.

12. It was submitted before us that merely because the presumption existed it was of effect and that it was not open to the judge not to address it, particularly as both defence counsel had requested that he do so. That ignores the reality of the situation which was that the judge was obliged to sum up to the jury on the evidence before it and to explain the law which it needed to apply in arriving at its decision. The prosecution had not sought to rely upon the presumption. It was not a matter which at any stage had been placed before the jury by the prosecution. Its applicability simply was not a live issue during the trial. In our view, the approach adopted by the prosecution was appropriate in the circumstances, rendering it unnecessary for the prosecution to invoke the presumption. The judge, in turn, was correct in declining to add to the burden of the jury by directing it to consider a matter which had not arisen in the course of the trial.

13. Conversely, we were concerned by one facet of the judge's summing up relating to the first applicant's belief that he was smuggling diamonds. When explaining to the jurors how it was they were to approach the explanation given by the second applicant in his video recorded interview the judge said:

"Remember, members of the jury, as I have said before, the second defendant does not have to satisfy you that his account is true. The burden is on the prosecution to prove his guilt. Of course, if you considered his account might be true, then you could not be satisfied beyond reasonable doubt of his guilt and you would have to acquit him."

That direction was unexceptionable, indicating to the jurors that if they found the second applicant's explanation to be true or found that it might be true then an acquittal would be the result.

14. When addressing the issue of the first applicant's asserted belief that he had been smuggling diamonds the judge expressed himself in these terms:

"If you thought that the first defendant's account that he believed the contents of the suitcase might be diamonds, you would be bound to acquit him".

We assume that the judge intended to say that the jury was bound to acquit if they thought that the first applicant’s account might be true, but that was not the message conveyed by that passage.

15. However, a summing up falls to be read as a whole. The judge had repeatedly emphasised that it was necessary that the jury be satisfied that the applicants knew the contents of the suitcase to be dangerous drugs; for example:

"... before you could find the defendants guilty, the prosecution would have to satisfy you that the defendants knew that what was in the suitcase was drugs"

"... Insofar as the first defendant is concerned, that he knew there were dangerous drugs in the suitcase he was bringing in Hong Kong..."

"To take an example, a man who imported what he believed to be sugar - or perhaps more relevant to this case - diamonds into Hong Kong which, unknown to him, turned out to be dangerous drugs, would not be trafficking in those dangerous drugs"

"You must therefore be satisfied that the defendant whose case you are considering knew that the activity in which he was engaged involved dangerous drugs before you could find him guilty of trafficking"

further, a little earlier in the summing up, having reminded the jury of the first applicant’s account, the judge said:

“…you will have to decide what you make of this explanation by the 1st defendant and what weight you attach to it. Do you think it might be true?”

and, of particular importance, the passage which followed immediately after that which we have set out in §14:

"But even if you reject the first defendant's explanation that he thought that the suitcase contained diamonds, you would still have to consider whether, on the evidence, you are satisfied that he knew it contained dangerous drugs."

16. The unfortunate phraseology of the direction concerning the first applicant's belief was, in our judgment, a matter which constituted a reasonably arguable ground of appeal, for which reason we allowed the first applicant's application to the extent of granting leave to appeal, but when the summing up was viewed overall we were satisfied that the jurors would have been under no misapprehension as to what it was they needed to decide and that the first applicant was to be given the benefit of any doubt. As a result, we dismissed the appeal.

Ground 2: That the summing up of the evidence in this straightforward case was not done in a fair and balanced manner and was put to the jury in manner which deliberately favoured the prosecution.

17. We considered each of the matters, individually and cumulatively, related by the judge to the jury referred to on behalf of the first applicant in support of this ground. We were satisfied that there was no merit in this ground. A commonsense, dispassionate reading of the impugned passages makes it plain that the judge was doing no more than summarising, for the convenience of the jury, the facets of the circumstantial evidence which he felt were relevant to their decision as to whether or not to draw the inference concerning the first applicant’s knowledge. It is the duty of the judge to point out the relevant evidence which may assist the jury in arriving at its decision:  as Simon Brown LJ observed in R v Nelson [1996] EWCA Crim 707 (25 July 1996):

“Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that a judge gives full and fair weight to the evidence and arguments of each side. The judge is not required to top up the case for one side so as to correct any substantial imbalance. He has no duty to cloud the merits either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more and no less than that the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence. Such a conclusion, one need hardly add, is likely to be the right one.

Really none of this should need saying at all. It is yet the experience of this Court nowadays that a convicted man or his lawyers will all too often complain that the judge, in a painstaking summing-up, has carefully exposed to the jury the nakedness of the defence case. The complaint, of course, is not put that way. Rather it is wrapped up as in the present appeal, presented as a lack of fairness and balance.”

18. The judge was at pains to ensure not only that the jurors were fully alive to the defence advanced by the first applicant but also that matters which could be construed favourably for the first applicant were fully understood by them; for example by reminding them in different contexts of his cooperation with the subsequent controlled delivery and inviting them to consider whether his participation was an indicator that he genuinely did not know that there were drugs in the suitcase.

19. Whether a judge has clearly, accurately and fairly summarised the issues and the evidence relating to them will be a question of fact and degree in every summing up. In our judgment, that was the position here: there was nothing improper or inappropriate in anything the judge said.

Ground 3:  This ground asserts that the trial judge failed to deal adequately with a question from the jury, failed to ascertain the "real meaning” of that question and failed to assist the jury when answering.

20. The question which the jury sent to the judge read:

"What is the difference in consequences between bringing into Hong Kong a large quantity of diamonds and trafficking in dangerous drugs?"

21. The judge made that question available to counsel and invited their suggestions as to how he should respond to it. The judge recognised, from the outset, that "They want to know what is the difference in consequences... it seems to me that there are two offences" and "Presumably they are concerned about the consequences of one and the other. Maybe they are thinking about how the consequences might affect the mind of the defendant." Clearly the judge was correct. The question asked by the jury was straightforward.

22. In the course of discussions with the judge, Mr. Whitehouse suggested that it would be "... only fair to make it clear that... if the jury think it might be the case that this defendant thought he was importing diamonds, then he must be found not guilty". The judge pointed out that the jury knew that, as indeed they would have done from his original summing up: he took the view that to repeat that would be "... to repeat a question and answer to a question they haven't asked". We agree.

23. The jury was recalled and the answer given by the judge to the question, after the question was repeated to them, was:

“The answer I give you is this. The consequence of committing a criminal offence always depends upon all the circumstances of a particular case. It is an offence in the Import and Export Ordinance of importing rough diamonds into Hong Kong without an import licence.

That is, of course not an offence with which either defendant has been charged.

In so far as the relative seriousness of that offence is concerned compared with the offence of trafficking in dangerous drugs, you may think, as a matter of common sense based on your knowledge and experience of the world, that one offence is very much more serious than the other. Does that answer the question?”

24. As is evident, the judge specifically enquired of the foreman of the jury whether what he had said answered the question the jury had asked. The foreman of the jury confirmed that it did do so.  The jury was dispatched to resume deliberating. For our part, we found the question unambiguous and the answer perfectly clear and appropriate – as, it is apparent, did the jury. It was, in these circumstances, impossible to understand how it may be suggested that the judge had failed to ascertain the meaning of the jury’s question.

Ground 4:  This ground asserted the conviction to be unsafe and unsatisfactory as a result of Grounds 1 to 3.

25. For the reasons indicated that, we were unpersuaded that any of Grounds 1 to 3 is sustainable. It follows that Ground 4 also failed.

The second applicant's grounds of appeal against conviction

Ground 1: There was an error in law in that the judge failed properly or at all to consider a submission of no case to answer.

26. Despite the second applicant recognising appropriately, in written submissions for this appeal, that there is no duty upon a judge to provide reasons for finding a prima facie case exists for an accused person to answer, the submission was made that the judge expressed himself in a "peremptory manner" and that it "would have been fair and proper" for him to have dealt with certain specific matters. We disagree.

27. Whilst there may have been a difference in the testimony of two witnesses relating to whether the door of the room was open or closed, that was a matter which fell for consideration by the jury. Even if the door had been closed, it would have been no bar to the second applicant being found by the jury to have taken possession of the suitcase inside the room. Whether the second applicant had taken possession of the suitcase was one of the three issues specifically identified by the judge for the jury's consideration.

28. The nature of the submission was one which properly could be dealt with as shortly as did the judge.

Ground 2:  There was an error in law in that the judge failed to direct the jury properly or at all on the law concerning the amended second count in the indictment in that (1) he failed to direct them that it was impossible to unlawfully traffic with the first applicant who was, at that time, in the custody of customs officers; (2) moving the suitcase a short distance within a room which was in the custody and control of customs officers did not amount to actually taking delivery and thus dealing with the drugs; (3) despite the fact that the prosecution had not presented the case on the basis of joint enterprise, he failed to direct the jury that they had to be sure that the first and second applicants were "in it together"; (4) he failed to direct the jury adequately of the necessity of proof by the prosecution of knowledge of the second applicant of the presence of drugs in the suitcase and of the evidential effect of his assertion of a lack of such knowledge.

29. The charge which the second applicant faced in Count 2 of the indictment contained the allegation that he had trafficked, in the guesthouse room, in the drugs in which the first applicant had earlier trafficked at Hong Kong International Airport. The basis of the prosecution case, as confirmed by the prosecutor, was that the second applicant had "dealt with" the drugs by taking the suitcase into his possession and exhibiting an intention to remove it from the room. To this must be added the evidence which demonstrates that he was fully aware of the contents of the suitcase, namely the fact that it contained four briefcases for, upon his arrival on the second occasion, he had said "I came to collect the four bags".

30. It was a question of fact for the jury to determine from the evidence whether or not the second applicant had taken possession of the drugs and had done so in such circumstances as to constitute his having dealt with them. It followed that whether or not the first applicant was in the custody of officers of the Customs and Excise Department was irrelevant. It followed, equally, that the jury must have been satisfied that the evidence established that the second applicant indeed had taken possession of the drugs and “dealt with” them even in the limited circumstances described by the evidence: that is a finding at which the jury was entitled to arrive.

31. The charge in Count 2 did not assert a conspiracy or a joint venture between the two applicants but rather the commission of a substantive offence by the second applicant: the reference in the particulars of the offence to the second applicant acting "together with" the first applicant was not an essential element of the offence with which the second applicant was charged. As the second applicant appears to recognise, despite this submission, the prosecution did not suggest that the conduct of the second applicant which gave rise to his criminal liability was part of a joint venture between him and the first applicant, nor did it present its case on that basis. The direction which the second applicant suggested be given consequently would have been otiose.

32. The complaint concerning the judge's failure to explain what it was the prosecution had to prove to establish knowledge of the presence of the drugs in the suitcase on the part of the second applicant and his failure to deal with the second applicant’s assertion of a lack of such knowledge was added at the hearing with our leave. As we have already observed when dealing with a similar complaint by the first applicant, we were satisfied that the direction given in respect of the second applicant was correct; moreover, the judge had repeatedly made it plain to the jury what it was they need to decide concerning the state of each applicant's knowledge.

Ground 3: The judge erred in law and/or there was a material irregularity in the way he dealt with the recognition evidence of the second appellant... as the man who had earlier came [sic] to the door of room D4.

33. The complaint in this ground was not that the judge failed to give a Turnbull direction but the manner in which he dealt with the discrepancies in the evidence of various witnesses. The complaint ignored two factors, first, that the jury had had the benefit of seeing and hearing the witnesses as well as a site inspection from which they would have been able to see for themselves the viewing opportunities presented to the witnesses and, secondly, that their attention had been drawn starkly to the discrepancies in closing submissions as well as in the judge's summing up.

34. The jury cannot but have been aware of the differences in the evidence and we saw no valid criticism that may be made in the way the judge addressed the jury on this issue. More to the point, however, was that even if the second applicant had not been the first black male who knocked on the door, there was still more than enough evidence in regard to his conduct at the time he dealt with the suitcase to sustain the conviction. A finding by the jury that it was the second applicant who knocked on the door on the first occasion added to the prosecution case only in the sense that it contradicted what the second applicant had said when interviewed by the police.

35. Such discrepancies as may have existed in the identification evidence did not render it tenuous to the degree where the judge would have been justified in withdrawing the evidence from the jury.

Grounds 4 and 5: These two grounds assert that there were "other" errors of law or material irregularities during the course of the trial and that the judge failed to properly sum up the evidence in a fair and balanced manner.

36. These grounds may conveniently be taken together. We considered each of the matters, individually and cumulatively, referred to on behalf of the second applicant in support of these grounds. We were satisfied that neither ground was possessed of any merit.

37. It is appropriate, however, for us to observe that the assertion that the way the judge dealt with the evidence of a telephone call "showed bias against the defence" was devoid of any foundation whatsoever. It is one thing for a convicted person to be dissatisfied with the outcome of criminal proceedings but entirely another for counsel to make an allegation of bias against a judge. Although, before us, Mr. Tolliday-Wright indicated that he did not wish to pursue the suggestion of bias, commenting that "one gets carried away", we say categorically that there was not the slightest hint of bias on the part of the judge anywhere in his summing up.

38. We have already indicated when dealing with the first applicant’s application that the judge clearly, accurately and fairly summarised the issues and the evidence relating to him. He did so equally in respect of the evidence against the second applicant.

Ground 6:  This ground asserted the conviction to be unsafe and unsatisfactory as a result of earlier grounds.

39. For the reasons indicated, we were unpersuaded that any of Grounds 1 to 5 was sustainable. It followed that this Ground also failed.

THE APPLICATIONS IN RESPECT OF SENTENCE

40. The judge drew no distinction between the roles played by the two applicants in the trafficking of the dangerous drugs. He recognised that their conduct was part of an operation to import a very substantial quantity of cocaine into Hong Kong from South America, whatever its final destination was to be. He correctly regarded an aggravating feature as being the importation of the drugs from abroad. He took as a starting point for each applicant a period of 26 years imprisonment, indicating that he fixed the starting point in accordance with the guidelines then prevailing as set forth in LAU Tak-ming and Others v R [1990] 2 HKLR 370.

The first applicant’s grounds of appeal against sentence.

41. The first applicant submits, first, that the starting point fixed by the judge was manifestly excessive suggesting that the international element of the offence was "illusory" and, secondly, that the reduction in two years for participating in the controlled delivery was inadequate.

42. The quantity of drug involved in this operation was a few grams short of 5 kg of cocaine. It had a street value in Hong Kong in excess of $6 million. It was, in any terms, a huge quantity of the drug. The first applicant had carried the drugs into Hong Kong. The submission was that because no cocaine is produced domestically within Hong Kong all instances of the trafficking must include by definition an international element: it thus follows that it is a feature present in all instances of trafficking and does not fall to be considered as a specific aggravating feature. That argument overlooks the fact that once a consignment of drugs has been introduced to Hong Kong as its destination a further trafficking takes place as those drugs are spread through the community: those subsequent acts of trafficking do not contain an international element or element of importation. This was correctly characterised as being an international operation and the judge was justified in regarding that as an aggravating feature. The starting point which he took was in accordance with sentencing practice and levels prevailing at that time.

43. We concluded that the discount of two years from the starting point of 26 years was inadequate for two reasons: first, the necessity to encourage co-operation by a link in the trafficking chain in order to apprehend others; and, secondly, recognition of the first applicant's role in the controlled delivery.

44. As to the first, it is self-evident that is in the interests of society that ongoing efforts to eradicate trafficking in dangerous drugs, as well as crime generally, remain effective. A powerful weapon in the arsenal of the prosecuting authorities is the option of involving an arrested person in securing the arrest of others whom he is able to identify. One factor in bringing this about is a positive indication from the courts that cooperation in these circumstances will result in a meaningful reduction in sentence.

45. As to the second, although, obviously, the first applicant was motivated by self-interest the fact remains that his participation may fairly be described as active rather than merely passive: he spent some 12 hours in the company of customs officers maintaining a pretence of being unable to meet other than in the guesthouse room; he cooperated fully with the customs officers and followed their directions throughout that period; he made some 26 telephone calls when setting up the meeting; he did nothing in any way to alert the person or persons to whom he spoke on the telephone, or the second applicant on the occasion of his first visit to the room.

46. In the circumstances we concluded that a three-year reduction of sentence would have been appropriate.

The second applicant’s grounds of appeal against sentence.

47. The second applicant contended that the starting point of 26 years for each applicant was inconsistent, improper and therefore excessive as there was an "absence of any or sufficient evidence" to show that the second applicant was part of an international operation; the judge's “belief” that the second applicant intended to take the drugs China; and that the judge was wrong to have "dismissed peremptorily the submission that there was an element of entrapment".

48. We recognised, of course, that there was a physical difference in the roles played by the two applicants. The first applicant brought the drugs into Hong Kong by air. He had been told that he would be met after his arrival and that the goods transported by him would be taken from him by his contact. The second applicant was that contact. He did meet the first applicant after a number of international telephone calls had been made and he did take possession of the items carried by the first applicant. By any definition, this was an international operation. It mattered not, in our view, whether the drugs were to be transported to another country or to be disseminated throughout the Hong Kong community: it was the second applicant who was putting in train the next step whatever it may be. We saw no necessity to distinguish between their respective roles and, thus, the starting point applicable to the second applicant.

49. It was fallacious to suggest that the judge held a “belief” that the second applicant intended to take the drugs into the Mainland: the judge observed "it is certainly possible that they were destined for Mainland" which, in the circumstances, was a comment which stated the obvious, given that the second applicant had come to Hong Kong from the Mainland a few hours before he had been arrested.

50. As to the judge's rejection of the submission that there was an element of entrapment of the second applicant involved, nothing more is required than to indicate that the submission had no foundation in reality.