HKSAR v. HUI WAI KIT

CACC 20/2020

[2021] HKCA 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 20 OF 2020

(ON APPEAL FROM HCCC NO 252 OF 2019)

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J U D G M E N T

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1.  The applicant seeks leave to appeal his conviction. He stood trial in the High Court charged together with a co-accused of trafficking in a dangerous drug, namely 796.2 grammes of a crystalline solid containing 776.3 grammes of methamphetamine hydrochloride (Count 1)  and alone of possession of a dangerous drug, namely 1.18 grammes of a crystalline solid containing 1.15 grammes of methamphetamine hydrochloride (Count 2).

2.  After unsuccessfully seeking to sever Count 2 from the indictment, the applicant pleaded guilty to this count prior to the empanelment of the jury.  There was a voir dire on the admissibility of the contents of the mobile telephones seized from the applicant and the co-accused, and of the applicant’s verbal replies under caution.  The judge ruled that the contents of the mobile telephones were admissible and that the verbal replies were made voluntarily and there was no reason to exclude them. However, he ruled as inadmissible the post-record of the verbal replies.

3.  The applicant stood trial together with his co-accused in respect of Count 1.  He was convicted after trial, whilst his co-accused was acquitted.  He was sentenced to 21 years and 6 months’ imprisonment on Count 1, and 14 months’ imprisonment on Count 2.  The sentence on Count 2 was ordered to be concurrent to the sentence on Count 1.

4.  On 25 July 2018, a parcel arrived in Hong Kong from Malaysia via DHL.  It was declared that the parcel contained a baby chair.  An examination of the frames of the baby chair revealed that inside was concealed the drugs in question, which had a street value of over $400,000. Customs officers organised several controlled delivery operations of the parcel which were unsuccessful.  Eventually the parcel was delivered to the co-accused at her residence on 7 August 2019.  A customs officer posing as an employee of DHL delivered the parcel to the co-accused.  She produced her identity card and when asked for the airway bill number, she showed an envelope with the number written on the back.  Upon receiving the parcel, the co-accused was arrested. This took place at about 5:15 pm on that day.

5.  The co-accused informed the Customs officer that the parcel was to be later collected by the applicant.  Another controlled delivery operation was conducted.  At 8:15 pm, the applicant arrived at the co-accused’s residence.  The applicant was arrested and under caution he said, “I have come to chitchat with my elder sister.”  When asked why he was there, the applicant said he had no place to go. 

6.  At the time, the applicant was carrying a backpack, with two mobile telephones inside.  Screenshots from the applicant’s mobile telephones showed contact with the co-accused’s mobile telephone number on WhatsApp, and the letters “DHL”.  There were WhatsApp messages of the co-accused’s name and address found on their respective telephones.  The screenshots also showed calls between them.  An examination of one of the applicant’s mobile telephones revealed a picture of the co-accused’s identity card and an envelope bearing her address.  The number corresponding to the airway bill number of the parcel appeared in a message in the co-accused’s WhatsApp records and this also coincided with the number on the records of one of the applicant’s telephones.

7.  When the applicant was arrested he was searched and found underneath his underpants was a plastic bag containing the drugs in Count 2.

8.  The applicant at trial elected not to give evidence or call evidence on his behalf.  The defence case was that he was not involved in the delivery of the parcel and that he was at the co-accused’s address to visit his elder sister and to chat. 

9.  In his notice of application for leave to appeal against conviction, the applicant encloses a document dated 22 January 2020 entitled “Initial Grounds of Appeal Against Conviction”, which was signed by Mr Philip Wong, counsel who represented the applicant at trial.  It appears this document was submitted to the Director of Legal Aid, who refused legal assistance on 27 July 2020, 9 February and 23 July 2021.  Legal assistance was also refused by the Hong Kong Bar Association, Bar Free Legal Service Scheme on 27 July 2021.

10.  It is not clear on what basis the applicant is pursuing his appeal against conviction.  The document purportedly prepared by Mr Wong is in the form of a report and not in conformity with Practice Direction 4.2.  The grounds of appeal that are listed, with the notation that they are not exhaustive, are poorly expressed and at times difficult to understand or comprehend.  As best as I can, the grounds are as follows: (1)  the judge erred in law in admitting the WhatsApp messages from the seized mobile telephones; (2)  the judge erred in law in ruling the applicant had a case to answer; (3)  the judge erred in adopting a standard of proof less than beyond reasonable doubt in admitting into evidence the WhatsApp messages; (4)  the judge misdirected the jury on the drawing of inferences from the truthfulness of the WhatsApp messages; (5) the judge failed to direct the jury on the need to consider the closing submissions of the applicant’s counsel; (6)  the judge failed to direct the jury fully on the prohibition on using the co-accused’s caution statement as evidence against the applicant; (7)  it was a non-direction in law to leave the full offence of trafficking in a dangerous drug to the jury; and (8) the judge’s summing-up was unbalanced and biased against the applicant.

11.  The complaints mainly centre on the judge admitting into evidence the call and message records from the telephones of the applicant and the co-accused and his directions to the jury relative thereto.  The defence challenged the admissibility of the WhatsApp messages and after submissions from the parties, the judge gave a detailed ruling admitting the messages into evidence.[1] The telephones and their numbers, and from whom they were seized, together with a selection of screenshots, were admitted into evidence by way of admitted fact.  The call and message records were not adduced to prove the truth of their contents but rather that they were sent and received between the parties.  This was explained by the judge to the jury in his summing-up to them.[2]  This evidence was clearly relevant and admissible for the purpose for which it was put.  See HKSAR v Ali Muhammad Kamran, unrep., CACC 202/2018, 26 July 2019,]at [79]-[88] per Macrae VP.

12.  The judge also gave the standard direction to the jury in relation to inferential reasoning and went as far as it was necessary to assist the jury in their evaluation of the evidence, including in respect of the WhatsApp messages.[3]

13.  It is not clear on what basis it is complained that the judge was wrong to have found a case to answer.  He gave a written ruling, setting out comprehensively the issues he had to decide and his reasons for finding a case to answer.[4] I can find no cause for complaint in the judge’s decision and reasoning in rejecting that there was no case to answer against the two accused.

14.  It is complained that the judge did not repeat the defence arguments and submissions in his summing-up to the jury.  There is no substance in this complaint.  The judge set out the defence case and the salient factual matters that the jury had to consider.

15.  The judge made it abundantly clear to the jury that they could not use the out-of-court statements of the co-accused against the applicant.[5] This complaint has no merit.

16.  It is complained that the judge left only “the full offence” of trafficking in a dangerous drug and not an attempt of the offence.  As to whether there was any discussion about this issue, it is not apparent from the limited papers in the appeal bundle.  In any event, the prosecution case was that the applicant was “dealing in or dealing with” a dangerous drug in that he participated in the delivery of the parcel and his arrival at the co-accused address was for the purpose of receiving the parcel from her.  This is how the judge summed up the case to the jury.[6] 

17.  Finally, it is complained that the judge’s summing-up was unbalanced and biased but no particulars are provided to support this ground.  It is apparent from a reading of the summing-up that there is no basis to this complaint at all.

18.  The applicant’s grounds of appeal are clearly the product of a hasty array of poorly considered complaints.  There is no merit in them.  It is to be noted that these initial grounds of appeal were filed nearly two years ago and have been languishing in their present state ever since then.  The applicant’s application for leave to appeal against his conviction is therefore refused.

19.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for renewal of his application.