HKSAR v. CHEUNG CHUN WING

CACC 121/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 121 OF 2001

(ON APPEAL FROM HCCC NO. 269 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The Charge

1 On 21 March 2001 this applicant was convicted after trial before Deputy Judge Toh and a jury of an offence of trafficking in dangerous drugs. The indictment alleged that on 19 April 2000 the applicant, with one So Kwok Keung, had, at a carpark at Nan Fung Industrial City, trafficked in 19.07 kilogrammes of methamphetamine hydrochloride or ice. So had pleaded guilty, and had been sentenced to 18 years' imprisonment. The applicant upon conviction after trial was sentenced to 27 years' imprisonment. He now seeks leave to appeal against conviction.

The case

2 The facts fall within a narrow compass. In June 1999, So registered with a company in Hong Kong called Sky Secretarial Service Company. He gave Sky's proprietor a copy of an identity card which bore his photograph, and which was in the applicant's name; and he also presented a business registration certificate in the name of Golden Trading Company.

3 On 14 March, So ordered paper napkins from a napkins manufacturer. So said that he represented a company called Goal Fair, and he requested the napkins to be delivered on 12 April 2000. On 10 April, he asked for the delivery date to be changed to 19 or 20 April, and for five sample boxes to be delivered to him. These five sample boxes were delivered to him on 14 April.

4 The applicant came to Hong Kong on 10 April 2000 using an Australian passport in the name of Jonathan Chang. His return flight to Australia was originally booked for 15 April, and later changed to 22 April. The prosecution asserted that that change coincided with the date of the planned shipment of the paper napkins to Australia on 22 April.

5 On 19 April, So and the applicant arrived in a vehicle outside a carpark at the Nan Fung Industrial City. They alighted, spoke to each other, looked around, according to the prosecution evidence, and then the applicant walked to one end of the street, So to the other. They walked back, and entered the carpark.

6 After 4 p.m., a container truck arrived at the carpark. The evidence was that So went to the truck and identified himself to the driver as Mr Cheung. The truck entered the carpark and afterwards, for about 20 or 30 minutes, the applicant, So and workers loaded boxes into the container. The applicant then went to the vehicle in which he had arrived, opened the boot with a key, took out two boxes, closed the boot, and carried the boxes to the carpark and placed them on the ground in the vicinity of the container. He was then seen, according to this evidence, to return to the vehicle to open the boot with the key, take out three boxes and place them on the ground. At that point, officers of the Narcotics Bureau approached him and asked what it was that he was moving, and he replied that the boxes contained paper napkins; this included the two boxes which he had already carried into the carpark. One of the officers opened the three boxes in front of him, and inside each box were four bags concealed amongst the paper napkins. Each bag contained methamphetamine hydrochloride. The applicant was arrested for trafficking in dangerous drugs, but he said that he did not know what the bags were, and that he was moving the boxes for his friend.

7 So was arrested, and an officer inspected the two boxes which the applicant had previously removed from the vehicle, and there was discovered more methamphetamine hydrochloride. A total of 19.07 kilogrammes of 'ice' had been concealed inside the five boxes.

8 The prosecution case was that the applicant and So were hiding these five boxes amongst other boxes, in order to smuggle drugs to Australia.

9 The applicant's case was that he was visiting Hong Kong to relax, and to find some business if he could, and that on 19 April he was only helping So to move these boxes which he thought had paper napkins for export to Australia.

10 There was clear evidence which suggested that the applicant was connected with the goods beyond the degree that he was prepared to admit. The goods were intended, as documentation found at So's place showed, for export to Australia. The applicant was ordinarily resident in Australia. He had come to Hong Kong on 10 April, originally booked to return on 15 April. The paper napkins had been ordered by So for delivery on 12 and 13 April, but that date was postponed until 19th. So had taken delivery of five cartons, from the company selling the napkins, on 14 April. According to evidence of ticketing arrangements, the applicant prolonged his stay in Hong Kong. The paper work found at So's premises showed, putting the matter broadly, that the goods were consigned to the secretarial services address in Australia used by a company which, when interviewed by the police, the applicant said was his own company, and to an individual named Jonathan Chan or Chang. When the applicant arrived in Hong Kong he arrived under a passport with the name Jonathan Chang. His identity card in the name Cheung Chun Wing was found in So's flat, but So's picture had been put on it. When the applicant spoke to the police in a lengthy interview, he said that he did not know why So had his identity card. In his oral testimony he said that he had given him the card to enable So to obtain a home permit. In his interview with the police, he said that the company whose name was found on documentation in So's flat was his, the applicant's; whereas in oral testimony he said that it was a company in the name of his girlfriend. As to how it came to be that the goods were consigned to the address in Australia which that company used for its secretarial services, he said in evidence that he had given that address once to a girlfriend of So. There was some dispute in the run of the trial as to whether the applicant had taken the second batch of three boxes out of the vehicle at all. The defendant denied that he had done so. There was also evidence suggesting that the manner of the applicant's conduct in transporting the cartons from boot to container was suspicious, and that the very weight of the cartons showed that no-one could have believed that they contained only paper napkins.

The issue

11 In her summing-up, the judge made it amply clear that the issue for the jury in this case was whether it was proved that the applicant knew that inside these five boxes were dangerous drugs. She dealt with the issue of trafficking, pointing out the high likelihood that if possession were proved, trafficking was perhaps an inevitable conclusion from the quantity of drugs and the circumstances of the case as a whole.

The grounds of appeal

12 We have had from the applicant no fewer than three sets of grounds of appeal and they overlap somewhat, but the applicant tells us that it is the last set that is to be treated as the definitive one.

13 In his first ground of appeal, the applicant attacks various aspect of the judge's summing-up, and he goes into considerable detail. We do not intend to go into each particular point, though each has been considered. He complains, for example, that the judge did not make clear that when the applicant changed his departure date from Hong Kong, he could not then have known the delayed shipping date of the goods from Hong Kong. We see from counsel's speech for the prosecution that what they relied upon - and this was, it must be emphasised, but one feature of many in the case, and hardly the be-all and the end-all of the prosecution case - was the fact that what was changed was the delivery date of the napkins from 12 or 13 April to 19th; and we note from the speech of the defence counsel that the first contact with the shipping company was in early April. The two cases; the two versions of events, and the defendant's evidence that he had made all his arrangements before he left Australia were, in any event, well placed before the jury by the judge. So there is nothing in this point which could approach an appealable ground. Nor do we see anything in the other particular complaints advanced under this head about the judge's treatment of details of specific parts of the evidence.

14 The applicant takes a point in relation to a particular passage of the summing-up which reads as follows:

"For the purpose of the Dangerous Drugs Ordinance, there can be different types of possession. The most common type is actual physical possession. It is where the substance is in a person's pocket, or on his person, or inside a bag which he was carrying, or inside a box which he was carrying. And here you have the evidence that the defendant was seen carrying two carton boxes, into the car park, and which the defendant does not deny he carried those two boxes inside the car park.

And so in normal circumstances if a person has something in his pocket, or on his person, or inside a box that he is holding, one can reasonably conclude that that person has knowledge of the presence of the thing and what it is. So in law that person is said to have possession of that thing." (Tr. p 16)

15 The applicant suggests that the judge has hereby imported a presumption of law and he says that it does not meet the requirements of section 47 of the Dangerous Drugs Ordinance, Cap 134.

16 Section 47 of the Dangerous Drugs Ordinance provides as follows:

(1) Any person who is proved to have had in his physical possession-

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

...

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.

17 If the applicant was carrying these boxes as suggested by the prosecution then it seems clear that the presumption under section 47 would have applied. But had it been applied in the trial, then it would have been incumbent on the judge to direct the jury that the applicant could, on the balance of probabilities, rebut it.

18 We are satisfied that in full context of the summing-up the judge was not seeking to apply the presumption under section 47. The presumption was never mentioned by counsel for the prosecution, or for the defence, and we see from the summing-up that the judge frequently told the jury that they could only convict the applicant if they were sure that he, the applicant, knew that there were drugs in those boxes; that it was for the prosecution to prove that; and that the prosecution relied upon circumstantial evidence to do so. That circumstantial evidence was itemised by the judge in the summing-up, and it was not there suggested that the fact, on its own, of physical custody of the boxes sufficed. The judge mentioned the applicant's trip to Hong Kong, its timing, the name under which he travelled; the fact that his name was on So's identity card, the place of consignment of the goods, the fact that the applicant assisted in the carrying of the goods to the containers for loading; the locking of the boot by the applicant; the applicant's date of departure being the same as the shipping date of the boxes; and she said: "The prosecution say that ... you will find from all these facts that ... it has been proved to your satisfaction, so that you are sure, that the only reasonable and compelling conclusion to draw is that he knew there were drugs in those five boxes." That list - not some presumption arising from physical control - was the basis of the case put by the prosecution, and explained by the judge. The judge directed the jury in terms that: "There is no burden on the defendant to prove anything"; and further, that if the account given by the applicant was true, or might be true, he was to be acquitted. In discussing the question of constructive possession too, on the applicant's case that he had never touched some of the samples in the vehicle, she made it clear that it was necessary for the prosecution to prove actual knowledge. The passage of which the applicant complains would, in isolation, have given us concern in this case. But it is clear in the context of the whole summing-up that what the judge was intending to convey was that, normally, if a person has something on him, the trier of fact would reasonably assume that the person knew of it, and what it was; and if that was so, that person was then in possession. We do not see any risk in the full context of this case of the jury assuming otherwise, or assuming that mere proof of carrying the box was enough. This particular point, and those associated with it, does not therefore succeed.

19 The applicant then complains in other regards about the judge's directions as to possession. He says that the judge confused the jury by asserting that they had to be sure that the defendant not only knew the drugs were present, but also that intended to possess them. The judge was here dealing with constructive possession and saying that presence near an object, even knowing the object was there, and what it was, did not constitute possession unless one intended to take possession as and when the need arose. That was correct and, in context, there was no misdirection.

20 The applicant says also that there was a misdirection as to joint enterprise. The standard direction was given by reference to the applicant and to the man So. Yet, says the applicant, the judge had told the jury not to speculate about what might have happened to So. There is here, in our judgment, no contradiction. The jury were told not to speculate about what might have happened to So; in other words, whether he was prosecuted and, if so, with what result or, if not, why not. Yet, when considering the case against the applicant it was indeed irrelevant that one may have played a bigger role in trafficking, than the other. Hence what had to be proved was that they were, as the judge put it, "in it" together. There is here no inconsistency, and no misdirection.

21 The fifth ground is that the judge wrongly placed an onus on the applicant to prove his innocence. He has referred us to the passage which he says constitutes such a direction or implication. It is, for reference, at pages 8 and 9 of the summing-up. We do not agree that any onus is thereby placed on the applicant. All the judge was there doing was listing the factors upon which the prosecution relied as amounting to strong circumstantial evidence from which guilt was, they said, to be inferred.

22 The sixth ground, in its effect, is similar to the fifth, and states that there was an unbalanced direction in relation to the applicant's evidence at trial, such that the judge was directing the jury that the burden on the applicant was as high as that on the prosecution; and, in another part, that the evidence of the applicant was to be ignored. There is nothing in these particular complaints. The judge had told the jury in terms that the defendant did not have to prove his innocence and, indeed, that, as to the defence which he had offered, it was not for him to prove it. The judge did say that good character was a factor to be used in deciding whether to believe his evidence; but that is a standard and a correct direction. It does not shift the burden.

23 Within the umbrella of this ground, the applicant points to the fact that the judge told the jury that the conflict which the jury had to resolve was not that between the defence and prosecution evidence but that between "the truth and possible falsehood told by the prosecution witnesses". Again, had that stood on its own, it might have caused concern. But, as always, these matters must be looked at in context. The judge had just told the jury that if the applicant's case was true, or may be true, then they were to acquit. She emphasized that they had to be sure that the prosecution case was true before they could convict, and it was further to emphasize that point that she made the comment of which the complaint was made. Looking at specific passages and the summing-up as a whole it was perfectly clear that the possible truth of the applicant's story was a matter for the jury to examine; they were told that, and they were told that if it was possibly true he was to be acquitted.

Conclusion

24 We have examined all these grounds and, we should add, grounds put forward on previous hearings, and we are satisfied that the conviction is not impeachable. The evidence against this applicant was overwhelming, and none of the arguments he has put forward establishes a basis for upsetting the conviction. Accordingly, the application for leave to appeal against conviction is dismissed.