HKSAR v. LAW CHUNG KI AND ANOTHER

CACC 220/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 220 OF 2002

(ON APPEAL FROM HCCC 159 OF 2001)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicants, Law Chung-ki (Law) and Chung Yuk-ming (Chung) appeared before Deputy Judge Toh sitting with a jury in the High Court on a joint charge of trafficking in dangerous drugs (the 2nd charge). Law also faced another separate charge of trafficking in dangerous drugs (the 1st charge).

2. Law pleaded guilty to the 1st charge, and both applicants pleaded not guilty to the 2nd charge. They were, however both convicted after trial.

3. Law was sentenced to six years' imprisonment on the 1st charge and twenty two years' imprisonment on the 2nd charge with three years to run consecutively. The total sentence on Law is twenty five (25) years' imprisonment.

4. On the 2nd charge, Chung was also sentenced to twenty two (22) years' imprisonment.

5. Law sought leave to appeal against his conviction on the 2nd charge. He also sought leave to appeal against the total sentence of twenty five years' imprisonment.

6. Chung sought leave to appeal against conviction on the 2nd charge only.

Prosecution Case

7. On 28 November 2000, Law was seen entering Room 139 On Chung House, Shun On Estate, Kwun Tong (the flat) at 5.10 p.m. and leaving it at 5.17 p.m. He was intercepted and arrested by the police on the ground floor staircase of the building.

8. The police found on Law's person 150.14 grammes of a mixture containing 96.71 grammes of heroin (the subject matter of the 1st charge). He was also found to have the key to the padlock of the flat. However, there was no evidence that he also had the key to the wooden door of the flat as the police had to break open the wooden door to gain entry.

9. Law was then taken back to the flat and a large quantity of dangerous drugs, namely 436.55 grammes of a mixture containing 250.56 grammes of heroin and 1,386.21 grammes of a crystalline solid containing 1,380.77 grammes of "ice" (the subject matters of the 2nd charge) were found inside the flat.

10. The total retail price of the dangerous drugs seized from the flat exceeded $1 million.

11. Some dangerous drugs were put on top of a coffee table together with some drug packing paraphernalia. There were "ice" on the dressing table and other dangerous drugs on the floor. There were two large packets of "ice" inside a black briefcase. There were also other dangerous drugs inside two cookie tins.

12. A large number of drug packing paraphernalia, including an electronic scale, cut straws, a pair of scissors, a blender and a hammer were found scattered around in the flat. The paraphernalia had traces of dangerous drugs on them.

13. According to the police, when they entered the flat, Chung was standing near an orange chair by the side of the coffee table. He was wearing gloves with a pair of scissors in his hands. He was also carrying in his trousers' pocket keys to the flat.

14. However, none of the police officers recorded in their notebooks that Chung was wearing gloves with a pair of scissors in his hands.

15. The flat was rented in the name of Chung's mother. Chung and his brothers were registered as approved tenants of the flat.

16. Law's fingerprints were found on the surface of a drinking glass and Chung's fingerprints were found on the bottom surface of a plastic box. There were also personal documents belonging to Chung inside the flat.

17. The police interviewed both applicants after their arrests. Law did not respond. Chung gave an explanation.

18. Chung said he lived alone in the flat as his mother and brothers had all moved out. He was asked about the dangerous drugs and the paraphernalia. Chung said they were not his and he did not know whom they belonged to.

19. Chung was specifically asked about the two cookie tins containing heroin. Chung said Law had brought them in about one month before the raid. He said he had subsequently opened them and found them to be empty. He also said he allowed Law to live in the flat and Law had agreed to pay the rent.

20. Chung did not account for the other dangerous drugs and the paraphernalia. He said they were not his and he did not know anything about them.

21. Chung also said that when the police entered the flat; he was sleeping and was not aware of the existence of the dangerous drugs at all. The police did not, however, confront him with the suggestion that he was wearing gloves with a pair of scissors in his hands.

Defence Case

22. The prosecution case on the presence of the dangerous drugs and the paraphernalia inside the flat was not disputed.

23. Law, however, denied that the key to the padlock was found on his person.

24. Chung also denied that he was standing near the coffee table or that he was wearing gloves with a pair of scissors when the police entered the flat.

25. Chung agreed that the keys to the flat were found in his trousers' pocket. However, he said he was not wearing the pair of trousers when the police entered the flat.

26. Both applicants denied possession of the dangerous drugs found inside the flat. They both tried to put the blame onto the other and accused the other of lying.

Law's Evidence

27. Law said that he returned from the Mainland at about 3.45 p.m. on 28 November 2000. He said he had arranged to obtain heroin from Chung and he therefore called Chung. He was then told to go to the flat and when he arrived, Chung opened the door for him. Chung told him to wait in the bedroom and then later gave him the heroin that was subsequently found on him when he was arrested.

28. Law said he only stayed in the flat for about five minutes and was then arrested shortly after he left the flat. Law denied that the key to the padlock of the flat was found on him.

29. Law denied having anything to do with the dangerous drugs found inside the flat. He said he first went to the flat with Chung's brother in 1998 to take drugs. He also said he had stayed in the flat for a night or two in the past.

30. Law said after Chung's brother died, he had been to the flat for less than ten times to take drugs. He said it was always Chung who opened the door for him.

31. Law also said his usual drug supplier was arrested and he therefore obtained the heroin from Chung. He said he had been obtaining drugs from Chung for about three months before his arrest. On the occasion in question, he said he did not pay Chung for the heroin (with a value of about $90,000 to $100,000) as it was the practice only to pay him after he had disposed of the drugs.

32. Law also tried to explain the presence of his fingerprint on a glass inside the flat by saying that after Chung had given him the packet of heroin; he went over to the refrigerator to have a glass of water.

33. Law denied the suggestion that he was Chung's partner in the drug trafficking business.

Chung's Evidence

34. Chung claimed to know Law well as Law used to work in his mother's food stall. He also said Law would stay in the flat occasionally and had keys to the padlock and the wooden door.

35. According to Chung, Law came to the flat often during the month of November 2000. Not only did Law sleep in the sitting room, he also kept his clothes, CDs, radio, fish tank and plants in the flat.

36. Chung said that in October 2000, his mother had a traffic accident and she then moved out of the flat to live in a friend's place. Chung said as he had to look for a job and had to take his mother to see a doctor, he only occasionally returned to the flat.

37. Chung claimed that he did not return to the flat on the night of 27 November 2000 as he chatted with his mother the whole night and he did not sleep.

38. He only returned to the flat at 8-9 a.m. on 28 November 2000 to get some documents. He said he felt unwell and therefore took off his pair of grey trousers and went to sleep.

39. Chung agreed that he had keys to the flat inside his pair of grey trousers, but he was not wearing the pair of trousers when the police entered the flat.

40. Chung said he woke up at noontime and went out for lunch. On his return, he took some medicine and then went to sleep again. The next thing he knew was the loud banging noise when the police officers entered the flat. He said he was actually walking out of the bedroom when the police entered the flat.

41. He was then arrested and handcuffed after he was told that there was "white powder" on the coffee table. Chung said he was then asked if he knew Ki Chai (Law) and he replied that he did.

42. Chung denied any knowledge of the dangerous drugs found inside the flat. He said he did not notice any dangerous drugs in the flat. He also said the cookie tins were brought in by Law and that they only contained cookies.

Summing Up of the Judge

43. The judge directed the jury on the basis that the allegation against the applicants was that they were in joint possession of the dangerous drugs for the purpose of unlawful trafficking.

44. The judge told the jury that they must be satisfied on the five elements, namely (1) that each of the applicants possessed the drugs; (2) that the drugs were dangerous drugs; (3) that each of the applicant knew, at the time of possession, that the substance was a dangerous drug; (4) that the applicant possessed the drugs for the purpose of unlawful trafficking; and (5) that the trafficking was unlawful.

45. The judge specifically reminded the jury that mere knowledge of the existence of the dangerous drugs and presence in the flat where the drugs were found was not sufficient to support a conviction on the 2nd charge.

46. The judge reminded the jury that they must be satisfied also that the applicants were in possession of the drugs, knowing that they were dangerous drugs and that each of them had them for the purpose of trafficking.

47. On the issue of possession, the judge directed the jury in the following terms:

"For the purpose of the Dangerous Drugs Ordinance, there are two different types of possession. One is actual physical possession - that means if I have the substance in my pocket or in my hand. The other type of possession is when the person does not have actual physical possession but has custody and control - that means that although the drug is not in his actual physical possession, he has, first of all, knowledge of the existence and nature of the drug; secondly, the intention to possess that substance; and three, the ability to reduce that substance into his physical possession if he so wishes.

To put it another way, although he does not, at that time, have actual physical possession, that substance is so situated in relation to him, or the circumstances are such that one can reasonably conclude that he has the intention, the power and the ability to take possession of it, to get hold of it and to deal with it as he likes, he is then said to have custody and control of the substance and, in law, he is then said to have possession of it." (pp. 14 C-M)

48. The judge told the jury that they did not have to find that each of the applicants knew about all the drugs inside the flat. As long as they were satisfied that each of the applicants knew about part of the dangerous drugs inside the flat and that all other elements of the trafficking were proved, they could return a guilty verdict.

49. The judge said the following:

"So if you are satisfied so that you are sure that a defendant knew that part of the drugs were inside that room, that he was in possession of that part of the drugs, and he was intending to use that drug to supply it to somebody, to package it, or to give it to somebody else, then he is equally guilty of trafficking." (pp. 3S-U)

50. In their evidence, each of the applicants not only tried to exculpate himself, but put the blame onto the other. The judge, in directing the jury how to approach the evidence of the applicants, simply said the following:

"Each defendant has chosen to give evidence before you. As I have mentioned, they are not obliged to give evidence, but having been advised of their rights, they elected to give evidence. Each defendant has given evidence which tended to implicate the other defendant in the commission of this offence which you are trying. Examine that evidence with particular care, for each defendant, in saying what he did, may have been more concerned about protecting himself than about speaking the truth. So bear that in mind when deciding whether you can believe what the 1st accused has told you about the 2nd accused, and when deciding whether you can believe what the 2nd accused told you about the 1st accused." (pp. 11Q -12C)

Hearing on 13 December 2002

51. When the applicants first appeared before us on 13 December 2002, their only complaint was that as their conviction records were disclosed to the jury, they did not have a fair trial.

52. It emerged from the records of proceeding that in their respective evidence, both applicants tried to put the blame onto the other and in so doing, had in fact attacked each other's character.

53. Their previous convictions were disclosed either in their evidence in chief or in cross-examination by counsel for the other applicant. Law himself specifically mentioned that he had pleaded guilty to the 1st charge and he was also cross-examined on it by counsel for Chung.

54. Under s. 54(1)(f)(iii) of the Criminal Procedure Ordinance, an accused cannot be questioned about his previous conviction unless "he has given evidence against any other person charged in the same proceedings."

55. As both applicants had indeed given evidence against each other, they were liable to be questioned by each other on their previous convictions. (See R v Varley [1982] 2 All E.R. 519 and R v Crawford [1997] 1 W.L.R 1329)

56. There is no valid basis for the complaints on the disclosure of their previous convictions at all. Indeed counsel for the applicants no longer pursue this ground.

Grounds of Appeal

57. Mr Selwyn Yu, on behalf of Law raised three grounds: (1) that the judge had not direct the jury properly as to how they should approach the evidence of Law and Chung when on the one hand, they were trying to exculpate themselves and on the other hand, they were putting the blame onto the other; (2) that the judge had failed to direct the jury that even if they found Law had assisted Chung in storing the dangerous drugs in the flat for the purpose of supply, such assistance, without more, would not amount to "trafficking in a dangerous drugs"; and (3) that the judge erred in directing the jury that they could convict the applicants if they were satisfied that the applicant only had knowledge of the existence of part of the dangerous drugs found inside the flat.

58. It was suggested that the judge's directions to the jury could have confused the jury and that on the directions given, the jury could have convicted Law on the 2nd charge on the basis of his trafficking in the drugs found on his person, that is, on his guilt on the 1st charge.

59. Mr Wong Po Wing basically raised the same grounds of appeal as Mr Yu. In addition, Mr Wong also complained that the judge had not sufficiently directed the jury generally on what constituted trafficking in dangerous drugs.

60. We do not agree with Mr Wong's submission that the judge had not properly or sufficiently dealt with the issue of what constituted trafficking in dangerous drugs.

61. The direction to the jury was based on the suggestion that the applicants were in joint possession of the dangerous drugs inside the flat and that they were in possession for the purpose of unlawful trafficking.

62. The judge had correctly directed the jury on the question of possession and in the light of the huge quantity of dangerous drugs involved and the circumstances in which they were found, anyone in possession of them must be in possession of them for the purpose of trafficking.

63. Both Mr Yu and Mr Wong suggested that the judge had failed to direct the jury that even if one of the applicants was assisting the other to store the dangerous drugs in the flat, such assistance could not amount to trafficking in the dangerous drugs.

64. They rely on HKSAR v Yan Suk Yin [2003] 4 HKC 2501, HKSAR v Ng Hung Chi CACC 186 of 2000 (unreported), HKSAR Chan Kwok Wah [2002] 3 HKC 562, and HKSAR v Yan Kwok Kwong [1994] 2 HKC 245.

65. With respect, the cases relied on by Mr Au and Mr Wong turned on the particular directions in those cases in which it was said by the trial judge that storing, keeping or getting dangerous drugs per se constituted trafficking in dangerous drugs, where the facts allowed of a different interpretation. There was no such suggestion in this case.

66. The judge had sufficiently and properly directed the jury on the five elements constituting possession for the purpose of trafficking. In particular, the judge had carefully directed the jury on the question of possession in the sense of control and custody, which clearly was the main, if not the only live issue in the case.

67. On a charge of trafficking in a quantity of dangerous drugs, the prosecution does not have to prove that the accused indeed trafficked in the entire quantity of dangerous drugs set out in the particulars of the charge.

68. It would be adequate if the prosecution establishes that the accused trafficked in at least part of the dangerous drugs, although the quantity of the drugs would be relevant to sentence.

69. Just as in a case of theft of a number of items, the prosecution does not have to prove that the accused had indeed stolen all the items set out in the particulars of charge as long as the prosecution proves that the accused did steal some of the items.

70. However, on the fact of the present case, bearing in mind the circumstances in which the dangerous drugs were found as demonstrated in the agreed facts and photographs, and the sketches, the issue was not a live one, for which reason we are puzzled as to why the judge found it necessary to deal at all with the issue of knowledge as to part only of the drugs in the flat.

71. We shall address this question afresh in relation to the next ground which is whether the judge sufficiently made clear that the issue they had to address was that of trafficking in the drugs in the flat, and that guilt on the 1st charge did not necessarily mean guilt on the 2nd charge - the count left to the jury.

72. Despite the fact that Law had pleaded guilty to the 1st charge and the jury was made aware of it, the trial concerned the 2nd charge alone.

73. The judge had repeatedly reminded the jury that they were only concerned with the dangerous drugs found inside the flat. To mention just a few examples:

"The real issue is...did the 1st and 2nd defendants, each of them, know that these drugs were inside Room 139...If you are sure...about these drugs inside Room 139... Was he or were they trafficking in them...The prosecution says that by reason of the various items found inside Room 139...you can conclude that these drugs were being packaged for supply or distribution" (pp. 2C-O)

"...Members of the jury, the prosecution has to prove beyond a reasonable doubt. That means, so that you are sure, first, that the 1st defendant knew that the drugs were inside Room 139; second, he was in possession, either by himself or jointly with the 2nd defendant..." (pp. 3A-E)

"...and if you conclude... that the 1st defendant, upon entering Room 139, may not have noticed certain packet..." (pp. 3P-Q)

"The prosecution sys the 1st accused admitted... that he knew there were drugs inside Room 139... So the prosecution says that the only irresistible inference to draw ...the presence of drugs inside Room 139..that he was jointly in possession of the dangerous drugs in Room 139 with the 2nd defendant for trafficking..." (pp. 9J-P)

"The question, therefore, for you to decide is this: did the drugs in Room 139 form a common pool from which both defendants had the right to draw from? Did each of them have the right to say what should be done with that dangerous drug? So knowledge is necessary for possession, but knowledge by itself is not sufficient. Mere presence inside a room where drugs are found is therefore not enough" (pp. 15G-K)

74. Most particularly, the judge directed the jury as follows:

"He (Law) then said that he had pleaded guilty already to the trafficking of the heroin which was found on him on 28 November by the police. He was going to re-sell those drugs to others. Members of the jury, remember this: the fact that he had pleaded guilty to trafficking in those drugs found on him does not mean that he is guilty of this present offence before you. So please, you must consider his guilt on this count only on the evidence that has been put before you." (pp. 29 F-J)

75. There is, in our view, no risk of the jury confusing the 1st and the 2nd charges. There is no risk that the jury would convict Law purely on the basis that he had knowledge of the existence of dangerous drugs inside Room 139 as he often went there to buy drugs.

76. Complaint is made that the judge never told the jury that if they thought that the accounts given by the applicants, or either of them, may be true, then they, or the particular applicant in respect of which such a finding was made, was entitled to an acquittal. We do not know why the judge did not do this and it is an omission which is not infrequently found in directions to juries.

77. The specimen directions issued by the Judicial Studies Board suggests a formula to be adopted when defendants render an exculpatory account, a formula along these lines:

"Of course if the account given by the defendant is true, then he must be acquitted, but he must also be acquitted if that account may be true."

78. In this particular case the omission is not at all fatal to either verdict because time and again the judge impressed upon the jury the fact that they could convict only if sure of guilt, and in that regard of each of the elements of proof which were conditions precedent to guilt. In particular, at page 39 G - O of the summing up, the judge said:

"When you are considering all this evidence - this is an example - when you are considering the different versions in the evidence put forward by the police witnesses on the one hand and the defendants on the other, you will appreciate therefore that the matter of credibility is of vital importance. In deciding this issue, you must understand that it is not correct to approach the question of guilt or innocence of the defendant on the basis of deciding which of the versions you prefer. You must always bear in mind the possibility that neither version is true and that the law requires that, in a criminal case, you must be satisfied not only that the prosecution's version is true, but the prosecution has also satisfied you beyond a reasonable doubt that all the essential elements of the offence charged have been proved and made out."

79. The case is different from HKSAR v Wong Wai Man & Ors (No. 2) [2003] 4 HKC 517 and HKSAR v Sze Kwan Lung & Ors, (Cr App 92 of 2002, 12 June 2003 unreported) in that the effect of the directions in those cases was to tell the jury to disregard any evidence, including defence evidence which they were not sure was true. That was not the effect of the directions in this case.

80. Nevertheless, the direction omitted in this case is a standard formula and one which should not be omitted. Its omission at the least causes detailed investigation into the impact of the directions as a whole and in some cases, though not in this, will result in the quashing of a conviction.

81. The next ground is the suggested failure of the judge to properly remind the jury how they should approach the evidence of the applicants in so far as they were trying to exculpate themselves and at the same time trying to put the blame onto one anther.

82. When the applicants said they had no knowledge of the dangerous drugs found inside the flat, they were entitled to be acquitted if what they said was true or might be true.

83. On the other hand, if the evidence of one of the applicants was to be relied on as evidence to convict the other applicant, the jury should be told that they must be sure that what that applicant said about the other applicant was true.

84. Mantell LJ in R v Walton [2003] EWCA 3644 analyzed the issue at paragraphs 18 of his judgment as follows:

"So far as the third ground of appeal is concerned the judge had to grapple with the not unfamiliar problem which arises when two defendants are each running a cut-throat defence. In this case, whereas the appellant's failure to name O'Callaghan at an early stage could not be used against him in the light of the judge's ruling, it could nevertheless be deployed in the defence of O'Callaghan. We acknowledge that it is not necessarily an easy concept for a jury to grasp and judges must be careful to make the position clear. Here we think that some further exposition would have been beneficial. We consider it would have been appropriate to add at the conclusion of the passage from the summing up quoted in para 10 of this judgment something on the following lines:

'Although, as I have said, you cannot use this fact in support of the case against Walton, it is something you are entitled to take into account in O'Callaghan's favour in assessing, as against O'Callaghan, Walton's evidence that he is not guilty and his suggestion that O'Callaghan has sought to exculpate himself by falsely blaming Walton.

When a defendant gives evidence against another defendant you cannot act on that evidence against that other defendant unless you are sure that it is true.

On the other hand if you think the evidence may be true but are not sure it is true, then, although you must not use it against the other defendant you will use it in favour of the first defendant.

There is nothing strange about that. It is simply a reflection of the fact that the burden of proof is on the prosecuting which means you can only act against a defendant on evidence you are sure about but you will act on evidence in favour of a defendant which you think may be true and which, therefore, the prosecution has not made you sure is untrue."

85. Apart from reminding the jury that each of the applicants might have been more concerned about protecting himself than about speaking the truth, the judge did not direct the jury in the manner as suggested in Walton (supra).

86. As was clear from Walton itself (see paragraph 19 of the judgment), the failure to give this direction is not necessarily a material non-direction. We do not think that that failure in this case was a material non-direction, and we say that for three reasons:

(1) it is clear that the jury disbelieved the accounts of both applicants. That is why both were convicted;

(2) throughout the summing up, the judge told the jury that they could only convict if sure of each element of the offence against each applicant separately. There was nothing in the directions that undermined that constant theme; and

(3) the only real live issue in the case was the issue of possession and the judge had given the jury a comprehensive, clear and correct direction. (see para 47)

87. Accordingly, whilst we grant leave to the applicants to appeal against conviction and treat the hearing of the application as the appeal, we dismiss the appeal of each applicant.

Sentence

88. Law pleaded guilty to the 1st charge involving 96.71 grammes of heroin. He was also convicted of the 2nd charge involving 250.56 grammes of heroin and 1,380.77 grammes of "ice".

89. The judge took a starting point in relation to the 2nd charge of 22 years' imprisonment and that is the sentence she imposed in relation to that charge in respect of both applicants. In relation to the 1st charge, the one which Law had plead guilty, she took a starting point of nine years' imprisonment, reduced that to a term of six years on account of the plea of guilty, and ordered that three years of the term should run consecutively to the term of 22 years. So the result for Law was a term of 25 years and for Chung 22 years.

90. On the facts of this case we have some difficulty with that result. The case was presented to the jury as one of joint enterprise; that the drugs in the flat were intended for sale by both applicants. No doubt the first count was included as a separate count in case the defence of Law to the 2nd charge was accepted by the jury, for there could be no doubt of his guilt in relation to the 1st charge even on his own story.

91. Given the conviction by the jury of both applicants on the 2nd charge, it must follow that the drugs that Law was taking out of the flat were part and parcel of the common store and that it was but an accident of timing that he had those drugs on him. Moments earlier, they would have been in the flat in the possession of Chung as well.

92. To support the extra three years imposed on Law is to inject an air of artificiality in the case, particularly when the amount he had in his actual possession, if viewed in the context of the tariff band with which we are dealing, would hardly have made a difference to the overall sentence had it been included as part of the 2nd charge.

93. The only just basis upon which a distinction might be drawn between the two applicants for sentencing purposes is that Law has a string of previous convictions, including one for trafficking but the sentences imposed for those convictions show that the offences were not grave ones of their kind.

94. Ms Shine, for the respondent, has sought to uphold the extra three years imposed on Law on the basis that he had more drugs, but this does not address the artificiality point that we have here addressed. Further she argued, somewhat to our surprise, that Law deserved the extra three years because he went to the flat to buy drugs for himself in order to sell them. The answer to that is that if indeed it was the prosecution case that that was his sole role, he ought not to have been charged, let alone convicted, with conducting the joint enterprise with Chung, which was the basis of the 2nd charge.

95. Despite the concession by Mr Yu that Law deserved a sentence slightly higher than that of Chung, we take the view the justice will be served by ordering the sentences on both the 1st and the 2nd charge against Law to run concurrently so that Law and Chung will receive the same sentence.

96. We therefore grant leave to Law to appeal against sentence and treating the hearing of the application as the appeal, we allow the appeal by ordering that the six years in respect of the 1st charge shall run wholly concurrently with the term on the 2nd charge, making in the case of Law a total sentence of twenty-two (22) years' imprisonment.