HKSAR v. LEUNG MING-CHUNG

CACC 156/2019

[2021] HKCA 603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 156 OF 2019

(ON APPEAL FROM DCCC 483 OF 2018)

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R E A S O N S   F O R   J U D G M E N T

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Hon Anthea Pang J (giving the Reasons for Judgment of the Court):

Introduction

1.  The appellant was convicted after trial by District Judge Dufton (“the judge”) of one count of trafficking in a dangerous drug, namely, 44.07 grammes of a solid containing 30.29 grammes of cocaine[1].  Upon conviction, he was sentenced to 6 years and 3 months’ imprisonment. 

2.  On 14 May 2019, the appellant applied for leave to appeal his conviction.  On 1 April 2020, with no objection from the respondent, a determination was made on the papers and the leave application was granted by a Single Judge^[2]. 

3.  At the appeal hearing, we dismissed the appeal without the need to call upon the respondent, saying that we would give our reasons in due course.  This we now do. 

The prosecution case

4.  The case at trial was one of inference.  Less than an hour before midnight on 27 March 2018, DPC 12507 (PW1) and his teammates were conducting an anti-narcotics operation in plain clothes at San Shui House, Shui Pin Wai Estate, Yuen Long. 

5.  At around 11:15 pm, PW1 saw the appellant drive a private car (VE 9273) to an outdoor carpark which was not full at that time. However, instead of parking his car at a proper parking bay, the appellant pulled over to the side of the driveway.  He then alighted from VE 9273 and walked to another private car (VJ 4057), which was parked at one of the parking bays across the driveway.  When doing so, the appellant kept looking around.  When he was just about one metre away from VJ 4057, the appellant was seen pressing on an electronic car key and a “beep” sound was heard, indicating that VJ 4057 was unlocked. 

6.  PW1 found the appellant’s conduct suspicious and decided to approach him.  When the appellant saw PW1 approaching, he immediately used the car key to relock VJ 4057 and hastily retreated in the direction of VE 9273.  As the appellant was about to get into VE 9273, he was stopped by PW1. 

7.  PW1 used the car key found on the appellant to unlock VJ 4057.  In his presence, PW1 searched the car and found a white plastic bag containing 160 transparent, re-sealable plastic bags of cocaine which was kept inside the storage compartment between the seats of the front passenger and the driver. 

8.  With the assistance of a drug detector dog, the police noticed some prizing marks on the electric window control panel of the driver’s door.  Upon search, another 51 transparent, re-sealable plastic bags of cocaine were found concealed inside the panel.  The total quantity of the cocaine seized was 30.29 grammes as particularized in the charge, with an estimated value of about HK$54,000^[3]. The appellant made no admission under caution. 

9.  VJ 4057 was registered in the name of one “Chan King Lung”^[4]. Whilst human DNA was found inside VJ 4057, it was of poor quality and considered unsuitable for the purpose of making any comparison.  Two fingerprints belonging to two different persons were found on the outside of VJ 4057 but no mark of value was found inside the car^[5]. 

10.  Upon his interception, the appellant had on him HK$10,057, RMB 376 and two mobile telephones^[6]. Nothing suspicious was found in VE 9273 or at the appellant’s place of residence^[7]. It was also not in dispute that the appellant was of a clear record^[8] and that his urine sample collected upon his admission into Lai Chi Kok Reception Centre yielded a negative result in relation to the presence of dangerous drugs^[9]. 

11.  The prosecution case was that the only reasonable inference to draw from all the surrounding facts was that the appellant was in possession of the drugs inside VJ 4057 for the purpose of trafficking. 

The defence case

12.  The appellant elected not to testify nor did he call any witness.  In gist, it was the defence submission at trial^[10] that there was no direct evidence of the appellant’s knowledge and possession of the cocaine.  Nor was there any evidence of his previous dealing or connection with VJ 4057. 

13.  Further, while it was accepted that one of the possibilities was that the appellant had gone to collect the cocaine in the car, it was argued that such was not the only reasonable inference to draw and that, on the available evidence, there could have been a number of other possible reasons why the appellant used the car key that night, including testing the car key and the car, or simply collecting an umbrella or a pair of shoes from the car. Emphasis was also put on the absence of evidence as to which part of the car was unlocked and whether the appellant really intended to get into the car^[11].

14.  In addition, criticism was mounted against the police officers as to whether the appellant was in fact running back to his car or merely walking hurriedly; whether the appellant was stopped by the police inside or outside his car; and what, according to the police, had aroused their suspicion on the appellant.  The defence submitted that PW1 had exaggerated his evidence so as to bolster the prosecution case. 

15.  Lastly, it was suggested that even if the appellant was a drug courier, he might only know about the batch of cocaine in the storage compartment but not the drug concealed inside the window panel.^[12]

The Reasons for Verdict

16.  The judge first dealt with the criticisms mounted against the police in respect of the observations made and found the suggested discrepancies immaterial.  In the end, the judge accepted PW1’s evidence as to his suspicion about the appellant and found PW1 a credible and reliable witness. 

17.  In drawing the only inference that the appellant was in control of all of the cocaine found in the car, the judge reasoned as follows^[13]:

“67.  Taking into account the defendant did not park VE 9273 in a proper parking space; he looked around after alighting the car; he was in possession of the car key to VJ 4057 which he used to unlock VJ 4057; he immediately locked VJ 4057 when DPC 12507 approached him; he turned round and hurriedly returned to VE 9273, I am satisfied so I am sure the only inference to draw is that the defendant was in custody and control of the cocaine, knowing it was cocaine and had gone to the carpark to collect the cocaine or part of the cocaine. 

68.  In addition, I agree with Mr Lau [the prosecution] that if the cocaine belonged to someone else it is unthinkable the defendant would be given the key to the car.  I find inherently improbable that if the cocaine belonged to someone else the defendant would be given the key to the car inside which was cocaine valued at over $50,000 thereby running the risk the drugs would be discovered and might very well be disposed of. 

69.  In drawing the inference that the defendant was in custody and control of the cocaine, knowing it was cocaine and had gone to the carpark to collect the cocaine or part of the cocaine I have taken into account that DPC 12507 was in plain clothes and did not shout “Police stop”; the defendant never entered VJ 4057; that anyone being arrested, in particular a person with a clear record, would be nervous and no DNA or fingerprint evidence was found connecting the defendant to the cocaine.  These matters do not cause me to doubt the findings I have made. 

70.  I have also considered Mr Khosa’s submission there could have been many other reasons why the defendant used the car key, for example he could have been testing whether the car key was working or he could have been collecting an umbrella or a pair of shoes.  I find inherently improbable at 11:15 at night the defendant would drive to a carpark just to test keys or collect an umbrella or a pair of shoes. This submission does not cause me to doubt the findings I have made.”

18.  Further, relying on the facts that there were over 30 grammes of cocaine which were packaged in 211 transparent, re-sealable plastic bags and that they were found in a car but not at the appellant’s home, the judge was satisfied that the appellant possessed the cocaine for the purpose of trafficking^[14].

The grounds of appeal

19.  Mr Ross, who appeared for the appellant in this appeal but not the proceedings below, argued that there was insufficient evidence to ground the conviction, saying that the appellant’s intention to possess the drugs for the purpose of trafficking was not proved and that, in any event, what the appellant did was no more than merely preparatory to the commission of the trafficking offence. 

20.  In relation to his complaint about the lack of sufficient evidence, Mr Ross submitted that there was no evidence to show that the appellant actually knew there was cocaine in VJ 4057.  He referred to the police photographs and made the point that the cocaine was not in plain sight, whether from outside or inside the vehicle.  Concerning the matters relied on by the judge, Mr Ross argued that those matters, even if taken together, could not properly enable an adverse inference to be drawn.  Mr Ross firstly submitted that the appellant’s retreat to his car might have been due to his concern for personal safety when the plain clothes officers approached him.  Yet, the judge failed to consider such innocent reasons.  Next, it was suggested that the appellant’s act of not parking his car in a proper parking bay could be indicative of there being no intention on the appellant’s part to drive VJ 4057 away, which was in his favour.  In respect of the unlocking of VJ 4057, Mr Ross reiterated that the appellant might have only intended to retrieve something other than the drugs. 

21.  Alternatively, Mr Ross argued that even if the appellant was intending to traffic, the prosecution still failed to show that he had done enough so as to amount to taking possession of the cocaine. 

Discussion

The Inference Argument

22.  Plainly, there was no direct evidence in this case to prove that the appellant trafficked in the cocaine.  However, that is very different from saying that there was no or insufficient evidence to ground a conviction.  Undeniably, the most incriminating piece of evidence was the appellant’s possession of the key to VJ 4057 which could be described as a makeshift storeroom containing over 200 small packets of cocaine.  The judge also had before him evidence relating to the appellant’s driving there late at night; parking his car on the roadside but in close proximity to VJ 4057; the appellant’s looking around while walking towards VJ 4057; unlocking it when near but immediately relocking it and going hurriedly back to his own car on seeing PW1 approaching him. 

23.  In our view, the judge could properly rely on the entirety of the evidence before him, in particular, the above matters, to come to the sure conclusion that the appellant knew of the cocaine stored in VJ 4057, and that by taking possession of the key, the appellant had the intention to possess the drugs and was, at the time, in actual control of them.  For example, the unlocking and relocking of VJ 4057 was clear proof that the appellant was in control of the drugs, first trying to access them, then changing his mind when an alarm was raised on seeing PW1 approach him and so trying to secure them.  Further, contrary to the submission of Mr Ross that the way the appellant parked his own car was a matter in his favour, what it showed, on an objective assessment, was that the appellant knew precisely where in VJ 4057 he could retrieve the something that he wanted to get (the cocaine as found by the judge) and he was therefore confident that he would not need to stay long at the scene, thus parking the car in the way he did. 

24.  Applying common sense to the facts, and in the absence of any contrary evidence, one would not fail to draw the only reasonable inference that the appellant must have had knowledge about the presence of the drugs inside VJ 4057 when he approached the car.  We also note that the two lots of drugs were both cocaine and the packaging was similar, if not identical, indicating that the drugs were likely to have come from the same source although being stored in different compartments. 

25.  Therefore, while the judge stated that the appellant “had gone to the carpark to collect the cocaine or part of the cocaine”^[15], this did not in any way vitiate his finding that the appellant was in possession of all the drugs.  The matter must be viewed in context.  If a person were found to be in possession of a number of items in that all the elements of possession, that is, knowledge, intention to possess, and control or custody, were proved, it matters not whether, on a given occasion, he only intended to retrieve some but not all of the items of which he had possession.

26.  Having dealt with the issue of possession, the judge then relied on the quantity of the drugs seized; the packaging; the location in which the drugs were found; and that there was no evidence to suggest that the drugs were for self-consumption, to draw the irresistible inference that the appellant possessed the drugs for the purpose of trafficking.  Again, we consider that the judge was perfectly entitled to arrive at such a conclusion based on the evidence before him.  There was nothing to undermine, contradict or explain the evidence led by the prosecution at trial. 

27.  Turning to the suggested innocent explanations of the appellant’s conduct that night, whether raised at trial or by Mr Ross before us, we could not lose sight of the fact that there was no evidence whatsoever of any of those explanations before the judge.  The appellant did not testify, which was his right, but in doing so and when the suggested possibilities did not arise on the prosecution evidence, all such possibilities were mere conjecture.  The court’s fact-finding task is not to be approached by speculation and counsel should not address the court on assumptions.  The suspicious conduct of the appellant could not simply be explained by inviting the court to consider various scenarios which were not supported by evidence. 

28.  Plainly, there could be endless permutations to explain a given situation.  The fact that Mr Ross came up with the suggestion that the appellant might have acted in the way he did because of concern for his personal safety, which explanation was never offered at trial, is one vivid example of why it is inappropriate to conjure up different innocent explanations without any evidence to support them. 

29.  In any event, the judge had, in this case, considered that it was inherently improbable that the appellant went there late at night just for testing the key or for collecting sundry articles. 

The Attempt Argument

30.  In his written submissions, Mr Ross complained that, “Even if the (appellant) was intending to traffic drugs from Car 2 (which is denied) he had not done enough to draw the irresistible inference as to the actus reus of taking possession.”^[16]

31.  With respect, this is misconceived.  The case here was not one in which the appellant was caught in any of the actual trafficking activities, for example, in the course of selling the drugs to others or otherwise dealing with the drugs.  The prosecution case from beginning to end was one of possession for the purpose of trafficking.  Therefore, the judge rightly considered the question of possession first.  On being satisfied that the appellant was in control of the drugs with the requisite knowledge and intention (although he did not have the drugs on his person at the time), the judge then examined the question of whether the appellant possessed the drugs for the purpose of trafficking. 

32.  Given the basis of the trafficking conviction in the present case, the complaint that the appellant had not got hold of any drug at the time misses the point.  What matters is not whether the appellant had the drugs on his person at the time but whether he was knowingly in control of the drugs at the time, and if so, whether he was in possession of the drugs for trafficking.  In this connection, while it had been suggested that the appellant might have been given access to VJ 4057 by a drug supplier in order to retrieve from the car dangerous drugs that he had earlier purchased, the position is this: there was not only a lack of evidence regarding this suggestion but also the seemingly contrary evidence that the appellant was not a drug addict because no dangerous drug was found in the appellant’s urine sample.[17] With the evidence before him, the judge’s conclusion on trafficking is unassailable. 

Conclusion

33.  We find no merit in any of the grounds advanced by Mr Ross.  The judge dealt with the case comprehensively and correctly identified all the issues.  He was plainly entitled to draw the inferences as he did.  In the circumstances, we dismissed the appeal.