HKSAR v. KO SHUI CHING

CACC 69/2022, [2023] HKCA 789

On Appeal From [2022] HKDC 220, [2022] HKDC 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 69 OF 2022

(ON APPEAL FROM DCCC NO 643 OF 2021)

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JUDGMENT

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1.  The applicant (who was D2 at trial) was jointly charged with D1 with two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was convicted of both counts by HH Judge D.Yau in the District Court after trial. D1 pleaded guilty to both charges. The applicant was sentenced to 75 months' imprisonment. He now acts in person to seek leave to appeal against conviction. At the hearing, he abandoned his appeal against sentence and his appeal against sentence was accordingly dismissed.

2.  After the hearing, I granted leave to appeal against conviction in respect of the grounds that I mention below and as Legal Aid Counsel was in court and confirmed that legal aid would be granted, so that the applicant has legal representation to advise and appear for him at the appeal hearing, there was no need for me to grant any appeal aid certificate.

The charge

3.  The applicant was alleged to have unlawfully trafficked with D1 in 4.65 grammes of a solid containing 3.89 grammes of cocaine in a residential unit in Tuen Tsz Wai, Tuen Mun, New Territories (“the Unit”) (Count 1) and 19.69 grammes of a solid containing 17.99 grammes of cocaine and 5.02 grammes of a solid containing 3 grammes of ketamine in an unnumbered stone hut near Tuen Tsz Wai Public Toilet, Tuen Mun, New Territories (“the Hut”).

The prosecution case

4.  Police officers laid ambush in the vicinity of the Unit in the evening of 17 December 2020.  At about 9:15 p.m. Ng, who later turned out to be living with D1 and the applicant in the Unit, was intercepted when he walked out of the Unit.  Ng was searched but nothing suspicious was found.  Having been told that Ng resided in the Unit, he was taken back there and D1 opened the door.  The applicant was sitting on the sofa inside the Unit.

5.  PW5 searched the applicant and found five keys^[1] , $9,180 cash, an iPhone and a car key on him.  One of those keys could open the main door of the Unit.  The applicant told PW5 which room he resided at (“Room A”).

6.  It was the evidence of PW3, the exhibit officer that inside Room A, witnessed by the applicant, he found the applicant’s mainland driver’s licence and 3 keys next to it on the window sill.  One key with a blue head^[2], was subsequently found to be the key to the door of the Hut in relation to Charge 2.

7.  The applicant disputed the place where his driver’s licence and the key leading to the Hut were found.

8.  At about 00:04 a.m. on 18 December 2020, the kitchen of the Unit was searched by PW3.  6 small packets of dangerous drugs and 7 cigarette packets were found.  10 small packets of dangerous drug and 7 cigarette packets were found^[3] near the sink. This was the basis of Charge 1.  The applicant, D1 and Ng were arrested and cautioned for trafficking in dangerous drugs.  The applicant said nothing.

9.  As a man was seen to have walked to a stone hut nearby during police ambush, one of the keys seized was used to unlock the door of the Hut.  Nobody was inside the Hut.

10.  The Hut was searched in the presence of the applicant.  A beef knife was found from an iron rack inside the Hut.  Next to the knife was a shoebox which was found to contain 39 transparent re-sealable plastic bags containing cocaine and ketamine in quantities particularized in Charge 2.  There were also 433 unused transparent re-sealable plastic bags, one plastic container containing a small amount of cocaine, a spoon, a cut up playing card containing traces of white powder and one electronic scale^[4].

11.  The applicant was arrested for possession of offensive weapon and trafficking in dangerous drugs in the Hut and he made no reply under caution.  It was an admitted fact that the applicant’s left thumb print was found on one tier of the 5-tiered iron rack inside the Hut^[5], on the edge of the horizontal divider on which the shoebox was found.

The defence case

12.  The applicant elected to give evidence.  He denied knowledge of the presence of the dangerous drugs in the Unit or the Hut. D1, who had pleaded guilty, was not called to be a defence witness.

13.  The applicant said that he rented the Unit for a monthly rent of $12,000 under a tenancy agreement and resided in the Unit with D1 and Ng.  Ng would pay $5,000 and D1 would pay $2,000.  He said that the $9,180 cash found on him at the material time was the rental payment for the month of January 2021.

14.  He said that he had just returned home shortly before the police gained entry to the Unit and was about to have his dinner. He had just delivered a meal box to a friend detained in Tuen Mun police station and then to Hung Shui Kiu to find out the cause of his friend’s arrest.  He purchased a mealbox and drove home.  He said that on his return that evening, he had not been to the kitchen in the Unit and he had never seen the packets of drug there, nor did he know who put them there.  He had no idea whether D1 or Ng was dealing with drugs in the Unit.

15.  He disputed the location of where his mainland driver’s licence and the 3 keys were found.  He said they were not found at the windowsill in his room, his mainland driver’s licence was found inside a black Manila envelope on the floor inside Room A^[6], and the bunch of 3 keys were found in the living room instead.  He denied renting the Hut or having the key to the Hut.  The applicant did not say how he knew the keys were found in the living room, nor where the keys were inside the living room.

16.  To explain how his thumbprint was found on the rack in the Hut, he said that a week ago D1 had asked him to move some items in the Hut and he moved the rack from outside to inside the Hut.  He did not know how D1 got the key to the Hut, or whom the Hut belonged.  He was not aware that there were dangerous drugs in the Hut.

Grounds of appeal

17.  The homemade grounds of the applicant stated that:

(a)  D1 had admitted to possession of the drugs and Ng was never prosecuted.  In the absence of evidence as to when the dangerous drug was placed in the Unit, the judge erred in finding that he had possession and knowledge of the dangerous drugs;

(b)  the evidence that he had gone to Tuen Mun and Hung Shui Kiu prior to his return to the Unit was not challenged, which lends support to his lack of knowledge of the presence of drugs in the kitchen of the Unit;

(c)  the judge erred in accepting the evidence of PW3 as to where his driver’s licence and the 3 keys were found;

(d)  the fact that drugs in the kitchen were never noticed by the police immediately upon entry lends support to his lack of knowledge of the drugs in the Unit;

(e)  the judge failed to give weight to the fact that no fingerprint or DNA of the applicant was found on the packets of the dangerous drugs or the key to the Hut;

(f)  Finally, he complained of wrong legal advice by his legal representative’s advice in failing to call D1 as a witness, or producing D1’s statement where D1 admitted to having possession of the drugs, thus compromising his right to a fair trial.  He waived his legal professional privilege and requested that D1 be summonsed to give evidence.

18.  A further ground was formulated by Mr Eric Cheung, from the Clinical Legal Education Office of the Faculty of Law in the University of Hong Kong.  It complains that that a case of joint possession where people live under the same roof requires more than mere knowledge and acquiescence.  A direction in accordance with Li Jin[7] was lacking in the present case.

19.  No substantive ground in relation to sentence was advanced by the applicant.

Discussion

20.  All the homemade grounds, in a nutshell, concerns the judge’s rejection of his evidence and findings that the prosecution witnesses were credible witnesses.  They concern whether the police officers were telling the truth about the following:  of not seeing the applicant park his car and walking back to the Unit; of where the applicant’s mainland driving licence and the 3 keys were.  These are all findings of facts within the judge’s arena and based on a rational evaluation of the evidence before him[8]. As for the applicant’s complaint about his own legal team of not calling D1 as his witness, firstly, I accept their affirmation to the effect that having interviewed D1 and listened to D1’s account, they formed the view that should D1 be called to give evidence, it would be more damaging to the applicant’s case rather than of advantage.  In any event, the charge being one of joint possession, the fact that D1 admitted possession would not act as a bar to the applicant also having possession.

21.  I am of the view that none of the homemade grounds are reasonably arguable.

22.  However, I grant leave on the ground of “joint possession” advanced by Mr Eric Cheung on behalf of the applicant, having referred to the case of Li Jin and the more recent case of HKSAR v Ko Wai-Shing[9].

23.  The judge found that the applicant was in joint possession of the drugs in the Unit with D1 based on the following:

(1)  that the drugs in the Unit were displayed openly in the kitchen of the flat which he resided in and “impossible to miss for anyone residing in the Unit”, “residing is the key word”[10];

(2)  That his evidence that he was only back in the Unit some 30 minutes before apprehension is rejected.[11]

24.  In relation to the drugs in the shoebox on the rack inside the Hut, the judge found that:

(1)  the shoe rack where the shoe box containing the drugs were found was “the most eye catching spot on the rack”, and next to “an ominous looking knife” which “must have caught the attention of anyone who was moving the rack”[12], that it would have been impossible for the applicant to have missed them;

(2)  Knowledge/possession could be inferred from the drugs found openly in possession of the applicant in the kitchen in the unit.

25.  It is noted that the defence was only premised on the applicant’s lack of knowledge, and that stance was reiterated in defence counsel’s closing submission[13]. However, it has been held that for spouses living under the same roof, mere knowledge and acquiescence is not the same as exercising control.  It was held in HKSAR v Li Jin that for persons living under the same household jointly charged with trafficking, “it was incumbent on the judge to make clear that something more than knowledge and acquiescence was required, that the necessary control to be proved was control of the drugs themselves and that an ability to control was to be distinguished from the actual exercise of control.”

26.  This issue was touched upon briefly by the prosecution’s closing submission[14], where counsel emphasized that the drug packets were in clear view of anyone going into the kitchen, at 101J-M, where he said:

“He is by far the older man, …If he had been acting honestly and without any knowledge in relation to those drugs, he surely would have taken steps to curtail the drug-taking activity. There is no evidence that he did, and we would say that the inescapable inference arises that he was, not only knew of those drugs which were clearly in view in his kitchen but was party to their possession with jointly the 1st accused.”

He went on to say, at 103 Q-S:

“…although the evidence doesn’t carry quite so far as positive evidence of joint possession for the purpose of trafficking, there must be an inference beyond doubt that he knew what was going on and took no steps to stop it.”

This proposition is incorrect.  According to Li Jin, which prosecuting counsel had mentioned in his closing[15], mere non-intervention hardly amounts to encouragement or promotion of trafficking.  The Court of Appeal in HKSAR v Ko Wai-Shing, applied Li Jin and quoted the following from R v Chan Chor-nam[16]that “knowledge, although an element in possession, is certainly not to be equated with possession”.  It is thus arguable that whether a direction on “joint possession” in line with Li Jin is required in the circumstances of the present case, and if so, whether the judge’s failure to direct himself on such makes the conviction unsafe and unsatisfactory

27.  Prosecution relied on “constructive possession” in respect of Charge 2[17] and Defence counsel again only emphasized the applicant’s lack of knowledge.  The issue of joint possession did not seem to be dealt with[18].  Whilst the judge based his finding heavily on the blue key which opened the Hut was found in the room where the applicant resided and the applicant’s thumbprint was found on the rack where the shoebox containing the drugs was placed, he was led by counsel for both Prosecution and Defence to also rely on the fact that the drugs were found openly in the kitchen (in the Unit) and in possession of D2[19]as overlapping evidence to be taken account of when considering Charge 2.  As discussed above in paragraph 26, the Li Jin direction ground is reasonably arguable also in respect of a joint trafficking charge of Charge 2.

28.  It is to be noted that whilst the respondent’s late filing of supplemental written submission was refused, I have fully considered Ms Fung’s oral submission advanced at the leave hearing. Trying to distinguish the Li Jin case, Ms Fung stressed that the tenancy agreement was in the applicant’s name and D1 and Ng had only been residing in the Unit for a relatively short period of time, unlike the spousal relationship in the other authorities.

29.  For the homemade grounds against conviction for which I have refused leave, I remind the applicant of his right of renew his application for leave to the Court of Appeal but that may attract a consequence of a direction for loss of time spent in custody pending his appeal, should the Court come to the view that there is no justification for the renewal of his application.

[1] Exhibit P2

[2] Exhibit P5

[3] PW3’s evidence at AB pp.79P-81C

[4] PW3’s evidence at AB pp.83I-87I

[5] §4 of Admitted Facts at AB p.16

[6] Photo 12 of exhibit P37.

[7][2010] 4 HKLRD 614

[8] Paragraphs 104-126, AB 37J-41I

[9] CACC 7/2020, [2021] HKCA 1803

[10] AB 42S-T, 43A-D

[11] AB 43P-T

[12] AB 44O-P, 45E-F

[13] AB 104-111, especially 110S-T

[14]at AB pp.99-105

[15] at AB p.104C

[16]Unrep. Cr App No.225 of 1986, 14 August 1986

[17]at 101M-O

[18]at AB pp.105-111

[19]AB 45N-O