HKSAR v. LAM YAT KEUNG

[English translation]
CACC 255/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 255 OF 2000

(ON APPEAL FROM HCCCNO 368 OF 1999)

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J U D G M E N T

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Cheung JA (giving the judgment of the Court):

The offences of trafficking in dangerous drugs

1. The applicant was charged with two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap.134).

2. The particulars of the first charge were that, on 1 June 1999, the applicant, on board a private car bearing registration number EG 1447 and parked at the junction of Granville Road and Chatham Road South, Kowloon, Hong Kong, unlawfully trafficked in one block of dangerous drugs, namely approximately 348 grams of a mixture containing approximately 195 grams of heroin hydrochloride.

3. The particulars of the second charge were that the applicant, at the same time and on board the same private car as particularised in the first charge, unlawfully trafficked in 4 blocks of dangerous drugs (not including the block referred to in the first charge), namely approximately 1,392 grams of a mixture containing approximately 780 grams of heroin hydrochloride.

4. The applicant pleaded guilty to the first charge but not guilty to the second charge. He was convicted after trial of the second charge.  He was sentenced to 7 years’ imprisonment for the first charge and 24 years’ imprisonment for the second charge, with both sentences to run concurrently.  The applicant now applies for leave to appeal against conviction on the second charge.

The agreed facts

5. The facts as agreed by the prosecution and the defence are as follows:

(1) On the afternoon of 1 June 1999, a team of police officers attached to the Narcotics Bureau of the Hong Kong Police Force acted on instructions and carried out anti-drug operation in Tsimshatsui area.  At about 4.48 pm, police officers of the team intercepted a private car with registration number EG 1447 at the junction of Granville Road and Chatham Road South.  A total of 5 persons were on board the car, namely the applicant, three males Cheung Shek Wing (transliteration), Li Man Chi (transliteration) and Chow Chi Kwong (transliteration), and a male Lau Siu Wan (transliteration) who was the driver of the car.  Detective Constable 45165 walked up to the outside of the front passenger compartment and revealed his identity to Cheung Shek Wing who was sitting there.  Detective Constable 45165 told Cheung Shek Wing that he suspected that Cheung Shek Wing had in his possession dangerous drugs (“drugs”) and that he wanted to search him.  Detective Constable 45165 then asked Cheung Shek Wing to alight from the car.  When Cheung Shek Wing was leaving the compartment as told, Detective Constable 45165 saw a transparent plastic bag on the front passenger seat of the car.  The plastic bag contained a newspaper, two cigarette packets and one block of suspected heroin.  Detective Constable 45165 then searched Cheung Shek Wing but did not find any drug on his person.  Detective Constable 45165 then arrested Cheung Shek Wing for the offence of drug trafficking.

(2) Detective Constable 48050 was also one of the police officers instructed to take part in the operation.  He walked up to the outside of the compartment of the car and revealed his identity.  After Chow Chi Kwong alighted from the left side of the rear seat, Detective Constable 48050 intercepted him and said that he had to search him as he was suspected to have drugs in his possession.  Detective 48050 proceeded to search Chow Chi Kwong and found from the inside of the front waistband of his trousers one block of suspected heroin wrapped in a white and green coloured plastic bag.  Detective Constable 48050 then arrested Chow Chi Kwong for the offence of drug trafficking.

(3) At that time, Li Man Chi was sitting in the middle of the rear passenger seat.  After Detective Constable 3118 (PW3) ordered him to alight from the car, PW3 found, at the seat which he had occupied and at the place between where Li Man Chi’s two feet had been, one block of suspected heroin wrapped in adhesive tapes.  No drug was found on Li Man Chi’s person.

(4) Detective Constable 47002 (PW1) was also instructed to take part in the operation.  He walked up to the outside of the rear compartment of the car, opened the car door on the right side and revealed his identity to the applicant, who was sitting behind the driver.  After that, Detective Constable 48479 (PW2) seized from inside the rear compartment a pink paper bag which contained a purple plastic bag.  The purple plastic bag contained a total of 5 blocks of suspected heroin.  These 5 blocks were subsequently examined and certified to contain heroin hydrochloride.  The weight of the heroin hydrochloride contained in each of the 5 blocks varied from 191 grams to 198 grams.  A fingerprint consistent with that of the left index finger of the applicant was found on the surface of the purple plastic bag.

6. The police took samples from the applicant’s face, hands and hair for analysis.  The police also seized and analysed the pair of sandals worn by the applicant at the scene of the crime.  The samples and pair of sandals were subsequently certified to carry traces of heroin.  It was also certified that there were traces of heroin on the face, hands and hair of another defendant Li Man Chi, who had been sitting in the middle of the rear seat of the car.

7. At trial, PW1 testified that, when he opened the rear car door, he saw a pink paper bag behind the applicant’s legs, and the bag was placed between the applicant’s calves and the seat.

8. Cheung Shek Wing, Chow Chi Kwong and Li Man Chi were each charged with the offence of trafficking in one block of drugs, and each of them pleaded guilty to the charge against him.

The applicant’s defence

9. The applicant gave evidence in his defence.  He was a drug addict who had to spend a few hundred dollars on drugs every day.  He knew another drug addict who introduced him to someone called “Ah Hong”, for whom he delivered drugs.  On the day of the offence, the applicant received a telephone call from Ah Hong who told him to fetch a piece of number 4 heroin, and for this he would be given 1/2 ounce of drugs, with a market value of about $3,000, as a reward.  The applicant was instructed to stand at the doorway of a sauna, holding a pack of lemon tea for ease of identification, and then someone would contact him.  At 2 pm on that day, the applicant waited at the appointed place.  Later, a private car bearing registration number EG 1447 arrived, and the driver of the car asked the applicant to board the car.  At that time there were already two passengers inside the car, occupying the front seat and the rear seat respectively.  The applicant boarded the car and occupied the right side of the rear seat behind the driver.  The driver drove around and then picked up the last passenger, who took the left side of the rear seat.  The driver then continued to drive around.  The applicant began to feel a bit tired, and when he was in a trancelike state, the car had neared the scene of the offence.  The applicant heard the driver ask the passenger at the front seat to open the car window and also heard the sound of objects being thrown into the car.  After that, the passengers inside the car followed the instruction of the driver, who told them each to take out one item from the paper bag thrown into the car.  When the paper bag was passed to the applicant, he also put his hand into the bag in an attempt to take out one block of heroin, but before he could get that block of heroin, the car was intercepted by the police, and the paper bag fell and landed by the side of the applicant’s feet and near the middle of the rear seat.

10. The applicant said that at the time he had no idea how many blocks of heroin were there inside the paper bag or whether there was any other heroin.  At that time he only wanted to get the one block of heroin he needed and the other things had nothing to do with him, and the items inside the paper bag would be dealt with by the driver himself.  The applicant said that, had the car not been intercepted by the police, the driver would have driven him to a taxi stand after he took the block of heroin, and then he would have followed Ah Hong’s telephone instruction and delivered the block of heroin to the specified destination.

Defence witness Chow Chi Kwong

11. Defence witness Chow Chi Kwong said he was also instructed to fetch one block of heroin, and that when he boarded the car at the appointed place, three passengers including the applicant were already inside the car.  Chow Chi Kwong said a person outside the car handed the paper bag into the car as the driver told him to do so.  After that, the driver told the passenger at the front seat to take out one block of substance wrapped in newspaper and then pass the paper bag to the rear seat.  The passenger in the middle of the rear seat took the paper bag, followed the driver’s instruction and took out one block from the bag, and gave it to Chow Chi Kwong.  That passenger also took one block for himself, and then followed the driver’s instruction and passed the paper bag to the applicant.  At that time the driver did not instruct the applicant to take out one block of drugs from the bag.  About 10 seconds after the applicant received the paper bag, the car was intercepted by the police.

Grounds of appeal

12. The applicant raises a number of grounds of appeal.  We do not consider it necessary to deal with them individually, as they are not valid grounds of appeal. Those grounds of appeal include:  (1) The trial judge erred by rejecting the defendant’s submission of no case to answer, and also by leaving the prosecution case on the second charge to the jury when no reasonable jury properly directed would have convicted the defendant of that charge.  This ground concerns PW1’s evidence that he saw the position of the paper bag.  (2) The trial judge failed to warn the jury that it was unsafe for them to rely on PW1’s evidence.  (3) On the authorities of R v. Kevin Brown (1984) 9 Cr App R 115 and HKSAR v. Tse Koon Kit CACC 388/97, the trial judge should have directed the jury on the applicant’s mode of committing the two different offences.  (4) The trial judge should have directed the jury on the role played by each of the passengers and the driver of the car.  (5) The trial judge failed to direct the jury sufficiently on the legal principles concerning possession of dangerous drugs.

Problems arising from the splitting of the charge

13. In our view, the summing-up given by the trial judge to the jury was fair and balanced, providing detailed directions in respect of the material evidence and issues that touched on the strengths and weaknesses of each party’s case.  However, since the prosecution and the defence had split the charge into two charges and the first charge was handled in such a way that the trial judge was unable to deal with the grounds of defence comprehensively when he directed the jury, the summing-up was rendered seriously defective.

14. To begin with, the applicant was charged with one single count of trafficking in 5 blocks of drugs.  He indicated that he would plead guilty to trafficking in one block of drugs.  Having discussed the matter with the defence, the prosecution split the charge into two, that is the first and second charges with which we are now concerned.  It is common ground that both charges involved the 5 blocks of drugs inside the paper bag.  However, the one block of drugs stated in the first charge did not refer to any particular block of drugs inside the paper bag; the 195 grams or so of heroin hydrochloride as stated in the particulars of offence was in fact the average figure taken of the quantities of heroin constituents in the 5 blocks of drugs inside the paper bag.  Further, the 780 grams or so of heroin hydrochloride mentioned in the second charge was in fact a figure arrived at by multiplying the average quantity of heroin constituents in the 5 blocks of drugs by 4 (195 grams x 4 = 780 grams).  These two points were not mentioned at all in the submissions by both the prosecution and the defence and in the trial judge’s directions to jury.  In ordinary cases, the nature and quantity of drugs involved only affect the length of the sentence to be imposed. In the present case, however, the splitting of the original charge into two and the ways in which the two charges were dealt with had a material effect on the applicant’s defence in respect of the second charge.

Definition of drug trafficking

15. Trafficking in dangerous drugs is defined in the Dangerous Drugs Ordinance as:

“‘Trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking …”

Broadly speaking, a defendant can commit the offence of drug trafficking in two different ways: by dealing in or with the drug, or by possessing the drug for the purpose of unlawful trafficking.  For the purpose of the present case, the applicant could have committed the first and second charges in the above two ways.

Possession of drugs

16. Plainly, in the present case, the prosecution instituted proceedings against the applicant on the basis that he possessed all the 5 blocks of drugs inside the paper bag in question for the purpose of unlawful trafficking.  Mr. Wong Po Wing, counsel for the applicant, submitted that the applicant pleaded guilty to the first charge because he did have the actus reus and mens rea of drug trafficking, meaning that he boarded the car in question pursuant to the instructions of Ah Hong who had told him to fetch one block of drugs.  In other words, it was not on the basis that he possessed the one block of drugs for the purpose of unlawful trafficking that he committed and pleaded guilty to the first charge.  In fact, the applicant completely denied that he was in possession of the paper bag that contained the 5 blocks of drugs.  Accordingly, the factual and legal bases on which the applicant pleaded guilty to the first charge were entirely different from the basis on which the proceedings were instituted.

17. Unfortunately, throughout the trial the defence had never made clear to the jury of the basis on which the applicant pleaded guilty to the first charge.  And neither had the prosecution nor the defence explained to the jury how the quantities of the drugs as stated in the two charges were arrived at.  Neither party had submitted to the court a copy of the agreed facts in respect of the first charge.  It was only through counsel’s submission that we realised that the applicant pleaded guilty to the first charge not because he possessed the drugs for the purpose of unlawful trafficking.

18. Throughout the trial, the prosecution case, the defence case and the trial judge’s directions to jury all focused on whether the applicant possessed the 4 blocks of drugs inside the paper bag for the purpose of unlawful trafficking.  The trial judge when directing the jury also made it clear that, in respect of the second charge, the prosecution had to prove the following three elements:

1.     the applicant possessed the drugs as stated in the charge;

2.     the applicant possessed the drugs for the purpose of trafficking;

3.     the trafficking was unlawful.

19. The trial judge also directed the jury that, when they were considering whether the applicant possessed the 4 blocks of drugs as stated in the second charge, if they believed the applicant’s explanation that at the material time his purpose and intention were to fetch one block of drugs for trafficking, then the jury had to consider finding the applicant not guilty.  However, at that time inside the car, there were 4 people besides the applicant, and the 5 blocks of heroin inside the paper bag could be possessed either solely by the applicant, or by someone else inside the car, or even jointly by all the people inside the car.  The prosecution said that what it had to prove was that the applicant possessed the 4 blocks of heroin for the purpose of unlawful trafficking.  The prosecution further said that it was not its case that everyone inside the car jointly possessed the 4 blocks of heroin or that a certain person possessed and trafficked in those 4 blocks of heroin.  Such propositions, in our view, over-simplified the legal issues involved in the present case.  It is true that the prosecution had to prove that the applicant trafficked in the 4 blocks of heroin as stated in the second charge.  The evidence, however, also showed that the driver had instructed the other passengers in the car to deal with the drugs inside the paper bag, and each of the passengers in the car did deal with those drugs.  The jury could not overlook this question when they considered whether the applicant possessed the drugs inside the paper bag.

20. We do not agree with the submission made by Mr. Wong of counsel that it was unnecessary to explain to the jury the basis on which the applicant pleaded guilty to the first charge.  Given that it had not been made clear that the applicant pleaded guilty to the first charge not because he possessed the paper bag and the one block of drugs it contained, it was very probable that the jury might have wrongly taken the view that, by pleading guilty to the first charge, the applicant had also admitted to possessing the paper bag and the one block of drugs inside the bag, and hence it was no longer necessary for the jury to consider whether the applicant possessed the paper bag.  The jury might therefore have proceeded to consider whether the applicant possessed only the one block of drugs inside the paper bag or whether he possessed all the drugs inside the bag.  The situation became even more confusing when the trial judge, at the request of the defence, emphasized to the jury that they had to consider whether the applicant had knowledge that there were 4 other blocks of substances and that those substances were drugs.  The jury would very probably have been unable to clearly appreciate the conceptual difference between possession of the one block of drugs inside the paper bag and possession of the paper bag and all the items it contained.  The jury might very probably have misunderstood that, when the applicant pleaded guilty to the first charge, he had also admitted to possessing the paper bag, and, as a result, might have overlooked the applicant’s explanation that he only intended to fetch one block of drugs.

21. The trial judge reminded the jury that they could not find the applicant guilty of the second charge merely because he was a drug addict and, in order to sustain his addiction, was prepared to deliver drugs for another person.  In our judgment, such a direction was inadequate in the circumstances of the case.

22. We now consider whether such a defect should be accepted as a ground of appeal, given that the applicant did not explain at trial the reason behind his pleading guilty to the first charge.  First, the submission made by defence counsel to the jury did not include an admission that the applicant possessed the one block of drugs as stated in the first charge.  Second, we take the view that, as the defence counsel had not fully explained to the jury the grounds of the applicant’s defence, and those grounds went to the crux of the defence to the second charge, and in view of the fact that neither the prosecution nor the defence had disclosed how the quantities of drugs as stated in the charges were arrived at, justice requires that the applicant be given an opportunity to fully state his grounds of defence so that he can receive a fair trial.

Conclusion

23. For the above reasons, the applicant’s conviction is, in our judgment, unsafe and unsatisfactory.  We grant leave to the applicant to appeal and, treating this hearing as the appeal itself, allow the appeal.  We set aside the applicant’s conviction on the second charge and order that the case be remitted for retrial on the second charge.  We also propose that, at the retrial, it should be made clear to the jury how the quantities of drugs as stated in the two charges were arrived at and on what basis the applicant pleaded guilty to the first charge.