HKSAR v. LEUNG MING CHUNG

CACC 156/2019

[2020] HKCA 189

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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J U D G M E N T

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1.  The applicant was charged with a single count of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of the count are that on 27 March 2018 the applicant trafficked in 44.07 grammes of a solid containing 30.29 grammes of cocaine. He pleaded not guilty to the charge and was tried in the District Court before District Judge Dufton (“the judge”). On 29 April 2019 he was convicted and sentenced to 6 years and 3 months’ imprisonment. On 14 May 2019, he filed a Notice of Application for Leave to Appeal (Form XI) against his conviction.

2.  Having been refused legal aid, the applicant was unrepresented for the application.  After reviewing the papers I was persuaded that this is an appropriate case in which to grant leave and, as the respondent has indicated in its written submission that it has no objection to the application being determined on the papers, I decided to dispense with an oral hearing.  This is my judgment on the application.  

The prosecution case

3.  In the evening of 27 March 2018, DPC12507 (PW1) and other police officers were laying in wait at the outdoor carpark outside San Shui House, Shui Pin Wai Estate, Yuen Long. They were conducting an anti-narcotics operation.  PW1 saw the applicant drive a private car, registration number VE9273, into the carpark and pull over to the side of the driveway.  Notwithstanding that the carpark was not full at that time, the applicant did not park his car in a parking bay. 

4.  The applicant then alighted from his vehicle and approached another private car, registration number VJ4057, which was at that time parked in bay F7 in the carpark.  As the applicant walked towards VJ4057, he kept looking around.  When he was about one metre from this vehicle, he used an electronic car key to unlock it. 

5.  PW1 found the applicant’s conduct suspicious and approached him.  When the applicant became aware of PW1’s presence, he immediately used the electronic car key to lock VJ4057 and then hurried back towards his vehicle, VE9273.  As he was about to get into his vehicle, he was intercepted by PW1. 

6.  When the police searched vehicle VJ4057 at around 11:24 pm on 27 March, they found a white plastic bag containing 160 transparent, resealable bags of cocaine inside the storage compartment that was between the seats of the front passenger and the driver.  From 12:50 am to 1:15 am on 28 March 2018 the police conducted a further search of VJ4057 with the assistance of a police drug detector dog.  At around 12:58 am, they found prizing marks on the electric window control panel of the driver’s door.  When they removed the panel they found a further 51 transparent, resealable plastic bags of cocaine concealed in a space in the driver’s door panel under the electric window controls. 

7.  The total quantity of cocaine seized by the police was 30.29 grammes, with an estimated value of HK$54,382, and it was this total quantity of cocaine that was the subject of the charge.  When the applicant was intercepted, he had in his possession HK$10,057, RMB 376 and two mobile phones.  Nothing incriminating was found in the vehicle VE9273 that the applicant had driven into the carpark.

8.  In the Admitted Facts, the vehicle VJ4057 was referred to as “Car 2”.  In this document the following facts were admitted:

(i)      human DNA was found inside Car 2 but it was poor in quality and hence it was deemed unsuitable for comparison purposes;

(ii)     two fingerprints were found on the outside of Car 2 belonging to two other persons. No mark of value was found inside Car 2;

(iii)    Car 2 was registered in the name of one “Chan King Lung”;  

(iv)    nothing suspicious was found in a search of the applicant’s residence;

(v)     a test of the applicant’s urine by the Correctional Services Department was negative for dangerous drugs; and

(vi)    the applicant was of clear record.  

The defence case

9.  The applicant did not testify or call any defence witness.  It was submitted on his behalf that the observations made by PW1 were unreliable.  There were disputes as to whether the applicant was in fact running back to his car or simply walking hurriedly, whether he was intercepted in the driver’s seat or not, and whether what it was that he did in fact made PW1 suspicious of him.  It was the defence submission that there could have been many other reasons why the applicant used the car key, for example he could have been testing whether it was working or simply collecting an umbrella or a pair of shoes and that the prosecution had failed to prove beyond reasonable doubt that the applicant possessed all the cocaine in VJ4057.

The judge’s Reasons for Verdict

10.  The judge accepted PW1’s evidence that he became suspicious and went forward to intercept the applicant because he did not park his car in a proper parking space, and that when he was looking around he appeared nervous.  He found PW1 to be a credible and reliable witness. 

11.  The judge explained how he drew the inferences that the applicant was in custody and control of the cocaine, knew it was cocaine, and had gone there to collect it, as follows:

“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 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.” [1]

12.  The judge went on to draw an inference of trafficking after taking into account the fact that there was over 30 grammes of cocaine, packaged in 211 transparent resealable plastic bags and they were found in a car but not the applicant’s home.

The applicant’s grounds of appeal

13.  In a letter dated 1 November 2019, the applicant complained of the insufficiency of evidence in convicting him of the trafficking offence and the lack of evidence in proving the custody and control of the cocaine by him.  He argued that he should have been convicted of attempted trafficking only.    

Discussion

14.  Here, there was no direct evidence that the applicant was intending to retrieve the drugs from the car.  The prosecution case was entirely circumstantial in nature and the elements of trafficking could only be inferred.  The primary facts for the purpose of the inferential reasoning consisted of:

(i)      the applicant did not park his own car in one of the parking spaces but left it on the side of the carpark road;

(ii)     he possessed the key to a car which was registered in someone else’s name and which had earlier been parked in a parking bay of this carpark;

(iii)    the carpark was located at a housing estate;

(iv)    the parked car contained cocaine stored in two compartments within the car; one compartment being readily accessible and the other compartment being a secret compartment which was much less readily accessible;

(v)     the applicant approached the parked car furtively, which aroused the suspicion of PW1, and he unlocked it; and

(vi)    the moment the applicant became aware of the presence of PW1 he locked the parked car, stopped moving towards it and started walking hurriedly to his own car.  

15.  The inferences that can be drawn are:

(i)      the car was being used to transport and store drugs; 

(ii)     the applicant was not intending to drive it away; and

(iii)    the applicant was intending to access the car but there was no direct evidence as to which part of the car he was intending to access. 

16.  The applicant’s purpose in accessing the car can only be inferred.  The judge drew the inference that the applicant “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.”[2]  The judge was here referring to the whole of the cocaine, including the cocaine in the secret compartment.  That would require an inference of prior possession or association or knowledge of this car.

17.  However, other than his possession of the keys to the car there was nothing to link the applicant to it.  There was no forensic evidence, such as fingerprints or DNA, that established a prior connection to or use of the car.  The judge said that this did not cause him to doubt his findings but he did not explain why.  In the absence of any evidence from the prosecution to explain why there would be an absence of such evidence it made the inference that the applicant was in custody and control of the cocaine prior to him approaching the car weaker.  It also strengthened an inference that someone else was in custody and control of this car and may have been giving the applicant access to the car only as a means of supplying the cocaine to him. 

18.  Even assuming that the only reasonable inference is that the applicant was intending to retrieve drugs from the car, is it the only reasonable inference that he was in control of the car, as opposed to being in temporary possession of its key so that he could gain access to it?  This is relevant to whether the applicant had knowledge of the drugs in the secret compartment.  If there was another reasonable inference available to be drawn from these facts, namely that the applicant was given access to the car by a drug supplier in order to retrieve from it drugs he had earlier purchased from that supplier, then, on that scenario, issues would arise of whether the applicant was guilty of trafficking or guilty of only attempted trafficking and whether he could be convicted in respect of the drugs concealed in the secret compartment under the window controls.

19.  It is my view that it is reasonably arguable that the circumstantial evidence in this case allows of this alternative scenario.  That being so, it is also reasonably arguable that the judge’s reasoning, which led him to conclude that the applicant “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”[3], is erroneous.

20.  I, therefore, grant leave to the applicant to appeal his conviction.  I shall not limit the applicant in what he may argue on the application. Issues of what inferences can be drawn, what basis of liability underlies the conviction and in respect of what drugs can the applicant be convicted shall all be open to the applicant to argue. 

Disposition

21.  For these reasons I grant the applicant leave to appeal his conviction and an Appeal Aid Certificate so that he can have the assistance of counsel to argue it before the Court of Appeal.  Should counsel conclude that part of the appeal involves an argument that the applicant cannot be convicted of the cocaine in the secret compartment then consideration may need to be given to whether the applicant should also seek leave to appeal his sentence out of time.  

[1]     Appeal Bundle, Reasons for Verdict, pages 27-28.

[2]     Appeal Bundle, page 27E-G.

[3]     Ibid.