HKSAR v. CHU SHUN HANG

CACC 243/2016

[2020] HKCA 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 243 OF 2016

(ON APPEAL FROM HCCC NO 238 OF 2015)

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REASONS FOR JUDGMENT

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Hon M Poon J (giving the Reasons for Judgment of the Court):

1.  The applicant was convicted after trial on 14 July 2016 before Tong J (“the judge”) and a jury on a charge of conspiracy to traffic in dangerous drugs, namely methamphetamine (“ice”), cocaine and ketamine, contrary to sections 4(10(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134 and sections 159A and 159C of the Crimes Ordinance, Cap 200. The verdict was unanimous. The applicant was sentenced to 15 years’ imprisonment.

2.  The applicant acted in person in respect of his leave application against conviction and was heard before us on 12 February 2019.  At the hearing, homemade grounds yet to be translated into English were submitted and as he indicated that he would also apply for leave to appeal his sentence, the hearing was adjourned.  The applicant acted in person in respect of his leave to appeal against conviction but was legally represented for his leave to appeal against sentence during the resumed hearing on 15 January 2020.  Having dismissed both applications, we indicated that we would hand down our reasons in due course.  That we do now.

Prosecution case

3.  The entire prosecution case[1] depended on the evidence of Miss Tsang (PW1), an accomplice, who gave evidence under an immunity (P52)[2].  It was alleged that the applicant conspired with PW1 and other persons unknown to traffic in dangerous drugs during the period named in the particulars of the charge and the agreement was that the applicant would provide drugs for PW1 to deliver to their customers.

4.  PW1 testified that she got to know the applicant when she went to a flat in Nanking Street to consume “ice” (“the Nanking Street flat”)[3] and afterwards she was tasked to look after the Nanking Street flat and to entertain customers who went there to consume drugs.  She was paid HK$500.00 daily by the applicant[4].

5.  PW1 later took up the work of delivering “ice” and collecting payments for the applicant[5] pursuant to his instructions.  Later the operation was moved from the Nanking Street flat to a flat in Lai Chi Kok Road (Flat A, 13^th Floor, Kwok Hong Building, 94 – 98 Lai Chi Kok Road) (“the LCK flat”).

6.  On 8 August 2013, PW1 turned up at the LCK flat at about 1:00 am[6]. She helped the applicant in packaging the “ice”.  After the applicant left, she was arrested outside the flat when she was about to deliver the “ice”.  Five packets of “ice”[7] were found in her possession and many other packets and tablets of “ice” and cocaine were found.  Upon analysis, there were about 150 grammes of “ice” and smaller amounts of cocaine and ketamine[8].  The value of these drugs was about HK$128,000.00.

7.  After her arrest, PW1 told the police in an interview that she did not know about the drugs found inside the LCK flat and that she had only known the applicant for two months[9].  She decided to become a prosecution witness and gave a different account to the police only after she was charged with trafficking, which eventually led to the arrest of the applicant[10].

8.  PW1 pleaded guilty to a charge of trafficking in dangerous drugs and at the time she gave evidence against the applicant, she had not been sentenced[11].

9.  PW2 was the owner of the LCK flat[12].  The lease of two years was signed by the applicant in the presence of his girlfriend Nikki.  Subsequently, Nikki signed a new lease commencing in August 2013.  PW2 was not aware of any breakup between the applicant and Nikki.  PW2 rejected the suggestion that she knew that the applicant had not been living in the LCK flat for months, when it was put to her in cross‑examination.

Defence case

10.  The applicant gave evidence[13].  He had been an “ice” addict since around 2011 and had previous convictions for possession of drugs, but was never convicted of drug trafficking or conspiracy[14]. He had a girlfriend called Kitty who lived in Hung Hom.

11.  The applicant denied visiting any Nanking Street premises that sold drugs[15]. He denied being involved in any drug trafficking activities.  He said that PW1 replaced his friend, Jimmy, as his drug supplier after Jimmy’s arrest, and she would deliver drugs to Hung Hom where he was living with Kitty[16].

12.  He said that Nikki was introduced to him by PW1. After he became intimate with Nikki[17], the three of them stayed in the LCK flat and  shared the rent. 

13.  The applicant said he scolded PW1 when he saw her packaging drugs, while sitting on her mattress in the LCK flat[18].

14.  After his relationship with Nikki turned sour, he moved back to live with Kitty in Hung Hom and had not been back to the LCK flat since.  The applicant said that the many telephone calls with PW1 as shown in the telephone records [19] were mostly about matters concerning rent.

Summing‑up

15.  The key issue of the case was the credibility of PW1.  The judge reminded the jury that the whole of the prosecution case depended on her evidence and that there was no direct evidence to support her testimony.

16.  The jury was reminded that PW1 was giving evidence under an immunity from prosecution.  They were further reminded of the defence suggestions that she was giving false evidence to obtain a reduction in sentence; that she had a grudge against the applicant as she thought he had betrayed her; and hence it would be dangerous to rely on her evidence[20].  Earlier on, when reminding the jury of the evidence, the judge had repeated PW1’s evidence that she knew she would likely be given a reduction in sentence but did not know the extent of the reduction; and that she knew generally that a defendant pleading guilty would have one‑third discount in sentence but she did not know that she could expect a 50 % discount if she gave evidence for the prosecution[21].

17.  The judge stressed[22] that it was essential to carefully assess PW1’s evidence. 

Grounds of appeal against conviction

18.  In his Form XI Notice of Application for leave to appeal, the applicant advanced the following grounds:

(1)     the prosecutor withheld information/material and only submitted it to court halfway through the trial; and

(2)     the judge made mistakes when directing the jury.

19.  A total of two sets of homemade grounds (written in Chinese) were filed by the applicant.  The second set was largely a repetition of the first with an additional ground complaining that his counsel failed to question PW1 in respect of inconsistencies in her evidence, namely that she said it had always been the applicant who brought the drugs into the flat but then said that she had no knowledge who brought the drugs she was packaging on the day of her arrest; and that she originally said that she would not receive calls from customers but then said that she received a call from someone asking for drugs on the day of her arrest.

20.  The rest of the grounds elaborated Ground 2 by giving examples referring to the summing‑up as follows:

(1)     The trial judge erred in relating the evidence of PW1 as she had been delivering other drugs and customers would go to the flat to take drugs when this was never her evidence;

(2)     By using words “the prosecution provided direct evidence” and the Prosecution was “able to prove”, the trial judge influenced the jury by indicating to them that the prosecution evidence was strong;

(3)     The judge omitted to tell the jury about the weakness in PW1’s evidence: that her evidence of two calls on 8 August was not supported by the call record and that she was lying;

(4)     The judge failed to emphasize to the jury the point advanced by the defence as to whether PW1 could finance her own addiction to “ice”; and

(5)     The judge erred in referring to instructions to PW1 to deliver various kinds of drugs when that was not her evidence.

21.  The applicant also submitted two additional grounds (written in English) at the hearing on 12 February 2019:

(1)     The prosecution wrongly adduced the call record (P56) after the close of the prosecution case and used it as a basis for cross‑examining the applicant;

(2)     The particulars of the charge alleging a conspiracy to traffic “ketamine, cocaine and methamphetamine” is against the evidence which only concerned “ice” and is bad for duplicity and thus a nullity.

Grounds of appeal against sentence out of time

22.  The appellant submitted that he was not made aware that the judge had applied the wrong sentencing guidelines when sentencing PW1 until after PW1’s appeal against sentence was allowed.  He complained that he had received wrong advice from his trial counsel and so he was not provided with the necessary legal advice to advance any grounds for appeal against sentence.

23.  The main ground advanced by counsel on behalf of the applicant was that the upward adjustment from the starting point adopted erroneously for PW1 was wrong in principle and 15 years’ imprisonment in the circumstances of the present case was manifestly excessive.

Respondent’s submission

24.  The respondent, in reply, submitted that PW1’s answer that she did not know who brought the drugs to the flat for her packaging the day of her arrest was not inconsistent to her answer that it was the applicant who took the drugs to the flat which was in response to a question about the general drug operation.  By the same token, what she said about receiving a call from the applicant’s friend on the day in question was not inconsistent to her evidence that normally the customer would not have phoned her directly.

25.  The respondent further submitted that the judge’s summing‑up was fair and balanced.

(1)     He had correctly summarized the evidence and properly gave standard directions to the jury.  He did not err in relating the evidence of PW1.  The judge’s remarks of “the prosecution provided direct evidence” and “the Prosecution was able to prove” were no more than telling the jury that PW1 provided them with direct evidence of a meeting of minds between PW1 and the applicant[23] and that was the basis of the conspiracy.

(2)     The judge was alive to the issue about the two phone calls on 8 August but P56 did not show any record of a second call and repeated such to the jury as the 5^th point out of the 12 points summarizing the defence’s closing speech.

(3)     In relation to the issue of whether there was a fair use of the street value of the “ice” in August 2013, in the absence of any other indicators, the judge was plainly right to say the defence was only using that information as a “general indicator” and then left it to the jury to decide what they could make of that.

(4)     The judge was correct in directing the jury that even if it was found that the agreement was limited to trafficking in “ice”, they are still entitled to convict the applicant on a charge the particulars of which alleged a conspiracy to traffic “ketamine, cocaine and methamphetamine”: see Lai Kam Fat v HKSAR [2019] 6 HKC 293.

26.  The call records (P54 and P56) were admitted into evidence by way of admitted facts, and certainly not mid‑way in the defence case.  The applicant was asked about the relevant call records by his own counsel during his examination‑in‑chief.

27.  All in all, the respondent submitted that the issues were properly focused for the jury and the respective cases of the prosecution and defence were properly presented.  The jury were appropriately warned as to how they should regard PW1’s evidence.  It was submitted that there was no error or mistake that would render the conviction unsafe or unsatisfactory.

28.  In reply to the leave to appeal against sentence out of time, it was submitted by the respondent that unlike the case of PW1, the judge did not refer to or adopt the tariff laid down in Tam Yi Chun [2014] 3 HKLRD 691 in adopting a 15 years starting point.  Having regard to the nature of the offence, the size of operation and the role played by the applicant, the starting point adopted could not said to be manifestly excessive or wrong in principle.

Discussion

29.  The complaint against counsel for not dealing with alleged inconsistencies in PW1’s evidence was misconceived.  We have gone through the relevant parts referred to by the applicant but we came to the view that there were no material inconsistencies between what PW1 described to be the general operation and what happened on the day in question.

30.  We then turned to examine the examples alleging mistakes made by the judge in his summing‑up.

31.  Whilst the judge told the jury that “PW1 said that during the material time she had been delivering drugs, particularly “ice”, to customers[24] at no time did he give the impression that she had been delivering any drugs other than “ice”.  The judge told the jury that “the kind of drugs the defendant had asked her to deliver to customers was the same, that was ‘ice’.”[25] The judge’s direction that customers would go to the flat to collect the drugs[26] was supported by PW1’s evidence that although she had been asked by the applicant to deliver drugs to customers at other places people used to go to the flat to take drugs, as the modus operandi at the LCK flat was the same as the Nanking Street flat.[27]

32.  The judge’s remarks complained by the applicant were taken out of context.  What the judge said was this:

“You may think, members of the jury, that it would be rare that there could be any direct evidence about a criminal conspiracy. As a matter of common sense, when people come together to plan, to commit a crime, you would not expect them to discuss about it openly, or write down a detailed contract. It would usually be done secretly.

But in our case, the prosecution has provided direct evidence to prove the existence of a criminal agreement. It has come from PW1. Of course, whether you accept it or not, is another matter.”[28] [Emphasis added]

33.  It is clear that the judge was relating to the jury the nature of the evidence against the applicant in respect of the conspiracy charge, and:

“As long as the prosecution are able to prove, in our case, that there had been a meeting of minds between PW1 and the defendant, and they intended to carry out the crime, then the offence will be proved.”[29] [Emphasis added]

34.  There is nothing biased or unbalanced about those directions.

35.  PW1 was cross‑examined against the phone record (P56).  The judge has succinctly put the question to PW1 on behalf of Defence counsel that, according to her evidence, at around 1:30 am on 8 August as she was leaving the premises, she received a phone call from a friend of the applicant asking to purchase drugs.  Then there was a second call telling PW1 that he was downstairs and ready to take delivery.  The call record, however, showed only one call on that day.  PW1, in reply, told the court that at that time she had two phones and explained that if the record did not appear on this phone, the customer must have called the other number[30], and the judge has fairly and comprehensively referred the jury to that evidence in his summing‑up.[31]

36.  One basis in attacking PW1’s credibility was whether she could finance her drug addiction.  It was suggested to her that she was trafficking in “ice” herself in order to feed her addiction, or else she would not be able to afford such an expensive habit.  As there was no evidence of the value of any drugs during the period between 2010 and early 2013 it was only fair to use the evidence of the street value of “ice” in August 2013 adduced by the Prosecution as an indicator.  The judge fairly went on to say:

“. . . And to make a point that ‘Ice’ was an expensive drug and apparently too expensive for PW1 in her situation. Now, whether it was a fair use of such information by the defence, and whether in your assessment of all the relevant evidence, that PW1 really could not have supported her addiction and, therefore, had lied about this, that would be a matter for you.”[32]

37.  According to the evidence of PW1, she acted under the instructions of the applicant to deliver drugs which were mostly “ice”. She denied to have ever delivered cocaine or any other tablets or pills on behalf of the applicant although she acknowledged there was a significant amount of cocaine and some ketamine tablets in the LCK flat.[33]  The judge then went on to direct the jury as follows:

“. . . Even if you eventually find that their agreement was only limited to trafficking in one kind of drug, that was ‘Ice’, you can still convict on the present charge because ‘Ice’ had been included in the charge.”[34]

38.  It was the applicant’s submission that as the particulars alleged conspiracy to traffic in “ketamine, cocaine and methamphetamine”, the Prosecution has to prove an agreement to traffic in all three drugs and the direction of the judge was a material misdirection.

39.  In Lai Kam Fat v HKSAR [2019] 6 HKC 293, the Court of Final Appeal made it clear that the drugs particularized in the particulars of the charge was not an ingredient of the offence:

“50. . . . The particular nature of the dangerous drug which is the subject of a trafficking charge is not an element or ingredient of the actus reus of the offence. The particulars of the offence in the indictment, specifying the drug as cocaine, were given to inform the appellant of the case against him.

…

75. . . . however, this answer may be subject to qualifications in order to ensure the defendant is afforded a fair trial.  For example, where the defence case is that the defendant believed the subject of the conspiracy was to traffic in a particular type of drug different to that specified in the prosecution case and to which a lesser sentencing tariff applies . . . , where there are multiple charges on an indictment alleging different conspiracies involving different types of dangerous drug, . . . ”

40.  In the present case, the defence case was neither of those.  The applicant simply denied any agreement between him and PW1 and it was all a frame up by PW1 to lessen her own culpability.  There was no misdirection by the judge.

41.  The call records, P54 and P56 were admitted by way of admitted facts[35]. The applicant complained that he was unaware of P56 until he was cross‑examined and it was wrongly admitted into evidence.  The truth was, P54 was a copy of a printout of all calls received and made from mobile phone number 54417721 between 1 and 8 August, whilst P56 was the printout of all calls of mobile phone number 54919622 between 3 to 7 August, 2013.  By the time the applicant was cross‑examined on 8 July 2016, P54 and P56 were already admitted into evidence by way of admitted facts dated 5 July 2016 and counsel referred to them by their respective exhibit numbers.[36]

Application for leave to appeal out of time and the grounds of appeal against sentence

42.  At the hearing for leave to appeal against conviction on 12 February 2019, the applicant informed us of his desire to appeal against sentence.  By the date of 26 February 2019 when he filed the Notice of Application for extension of time to appeal for leave to appeal against sentence, he was about 2 ½ years out of time.  In his affirmation he explained why he did not file the notice of appeal timeously, namely, that:

(1) He was advised by his legal representative at the conclusion of the trial that there was no ground of appeal against sentence; and

(2) He only knew lately that PW1’s appeal against sentence was allowed on grounds that the judge erred in adopting the wrong tariff.

43.  The respondent opposed the application.  It was submitted that at no time did the judge apply the tariff in Tam Yi Chun in arriving at the starting point of 15 years in respect of the applicant.  In the circumstances of the present case, the sentence could not be said to be wrong in principle or manifestly excessive.

44.  In HKSAR v Ma Cheuk Shing, CACC 507/2012, the Court of Appeal reiterated that the burden on the applicant to persuade the court that an extension of time was justified becomes more onerous the longer the delay, albeit that leave would not be refused if the court is of a view that that a substantial and plainly arguable ground of appeal is being shut out.

45.  Contrary to the submission by counsel for the applicant that the judge must have had Tam Yi Chun in mind when sentencing the applicant, the judge stated in clear terms that the applicant’s case was somewhat different from PW1’s.  The charge he faced was a conspiracy to traffic charge, whilst PW1 was charged with trafficking in dangerous drugs where the actual quantity was significant to sentencing.

46.  In Chung Ka Lun [2018] 4 HKLRD 229, the Court of Appeal said:

“It would be unrealistic to adopt a strictly arithmetic approach to X’s general and imprecise evidence as to the quantity of ‘Ice’ used in the conspiracy (ie trafficking of ‘Ice’ on 10 occasions totalling about 30g of ‘Ice’). The guidelines for trafficking in dangerous drugs were clearly aimed at couriers, not those like D. As the organiser of a conspiracy to supply ‘Ice’ to drug addicts, it was right to enhance the sentence for D’s more culpable role.”

47.  The judge took into account that the Conspiracy covered a period of over 8 months; and the applicant was the main operator of this sizable drug‑trafficking activity.  The possible numbers of deliveries were in the region of 10 to 20, and an unknown male was employed prior to the employment of PW1.

48.  Chung Ka Lun involved some 10 transactions over a period of about 2 months.  The culpability of the applicant was comparable, if not more serious.  The Court of Appeal made it plain that:

“46.  . . . The applicant was no mere courier and was considerably further up the drug trafficking hierarchy. When it is clear that a defendant is more than a mere courier of dangerous drugs, as in this case the organiser of a conspiracy to supply ‘Ice’ to drug addicts, it is right that the sentence should be enhanced to reflect this more culpable role.”

49.  The sentence was not manifestly excessive or wrong in principle.  The judge was right to reflect in his sentence the duration of the conspiracy, the fact that it involved multiple offences of trafficking which included using X to deliver drugs to customers and the applicant’s role as its organiser.

50.  The applicant has failed to discharge the onerous burden upon him which would justify an extension of time.  We are satisfied that there is no merits in the ground of appeal and by dismissing the application for extension of time we would not be shutting out a substantial and plainly arguable ground.

51.  The application for leave to appeal against sentence out of time is dismissed.

[1] Appeal Bundle p 7 E – G (summing-up); and Appeal Bundle p 50 Q – R (prosecution closing speech).

[2] Appeal Bundle p 10 N – O.

[3] Appeal Bundle p 10 P‑R.

[4] Appeal Bundle p 10 T ‑ p 11 C.

[5] Appeal Bundle p 11 D‑K.

[6] Appeal Bundle p 11 S ‑ p 12 E.

[7] Appeal Bundle VI para 1 (Admitted Facts) (4.76/4.85 grammes of “ice” inside PW1’s backpack); also Appeal Bundle p 12 F‑H & p 28 R‑U (summing-up) (Appeal Bundle p 10 J was mistaken).

[8] Appeal Bundle VII para 2 (Admitted Facts) & P55; and Appeal Bundle p 36 N‑O & R‑S.

[9] Appeal Bundle p 13 H‑O.

[10] Appeal Bundle p 37 D‑F.

[11] Appeal Bundle p 10 M.

[12] Appeal Bundle p 16 H‑R.

[13] Appeal Bundle p 18 S‑T.

[14] Appeal Bundle p 19 D‑G.

[15] Appeal Bundle p 19 J‑L.

[16] Appeal Bundle p 19 P‑Q.

[17] Appeal Bundle p 19 R ‑ p 20 B.

[18] Appeal Bundle p 20 C‑D.

[19] Appeal Bundle p 20 Q‑T.

[20] Appeal Bundle p 30 R ‑ p 31 C.

[21] Appeal Bundle p 13 Q ‑ p 14 C.

[22] Appeal Bundle p 31 D‑H.

[23] Appeal Bundle p 009 E‑N.

[24] Appeal Bundle p 008 D‑F.

[25] Appeal Bundle p 011 I‑K.

[26] Appeal Bundle p 011 M‑O.

[27] Appeal Bundle p 101 R.

[28] Appeal Bundle p 009 B‑G.

[29] Appeal Bundle p 009 M‑N.

[30] Appeal Bundle p 144 R‑S.

[31] Appeal Bundle p 015 A‑C.

[32] Appeal Bundle p 26 J‑O.

[33] Appeal Bundle p 113 L‑Q.

[34] Appeal Bundle p 25 C‑E.

[35] Appeal Bundle VIII paras 6‑7.

[36] Appeal Bundle p 185 D‑E; Appeal Bundle p 185 E‑F.