HKSAR v. WONG CHUN YAU

CACC 118/2019

[2021] HKCA 120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 118 OF 2019

(ON APPEAL FROM HCCC NO 128 OF 2017)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  Following a trial before Alex Lee J (“the judge”) and a jury, the appellant was convicted by unanimous verdict of the jury of a single count of trafficking in a dangerous drug, namely 13.19 grammes of a crystalline solid containing 12.93 grammes of methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  He was sentenced to 6 years and 11 months’ imprisonment. 

2.  The appellant applied for leave to appeal against his conviction.  He was unrepresented at the hearing of the application, having had legal aid refused.  The Single Judge[1] granted the appellant leave to appeal his conviction as well as an Appeal Aid Certificate. 

The indictment

3.  The count in the indictment pleaded that on 18 September 2016 the appellantunlawfully trafficked in 12.93 grammes of Ice narcotic at Tai Wo Estate Bus Terminus, Po Nga Road, Tai Po.  The drugs were in fact concealed in a cigarette packet that had been placed in the pocket under the door handle of a car, next to the driver’s seat, which the appellant was driving.  However, it subsequently became known that another person, by the name of Mok Shu Ming (“Mok”), was involved with these drugs.

4.  Although there was no mention of any other person in the indictment, it was an admitted fact at trial that Mok had pleaded guilty to a count of trafficking in the same drugs as specified in the count the appellant faced.

The prosecution case

5.  Early in the morning, at about 2:30 am, on 18 September 2016, the appellant was seen sitting in the driver’s seat of a private car which was parked illegally in the bus stop area of Tai Wo Estate, which was a restricted area.  It was an admitted fact that this car was registered in the name of the appellant’s mother and was lent to him for his personal use. 

6.  PW1, a police sergeant, who was patrolling in the vicinity, approached the car and made some preliminary enquiries with the appellant, including what he was doing there.  He replied that he was waiting for his friend but he had no idea where he had gone.  PW1 became suspicious that the appellant was in possession of a dangerous drug and he summonsed his colleagues to the scene to provide assistance.

7.  PW2, the exhibits officer in the case, searched the private car and found a cigarette packet in the pocket under the door handle of the car next to the driver’s seat. Inside the cigarette packet, there were six transparent resealable plastic bags (which variously contained a total of 10.00 grammes of Ice narcotic), and also another transparent resealable plastic bag, containing six other resealable plastic bags (which variously contained a total of 2.93 grammes of Ice narcotic), which represented the Ice narcotic specified in the count.  The appellant was arrested by PW1 and remained silent under caution.

8.  It was an admitted fact that the estimated street value of the Ice was about $4,788.  Amongst all the seized exhibits, only the cigarette packet was sent for fingerprint examination but no marks of value could be found.

The defence case

9.  As part of the defence case, a set of admitted facts (exhibit D2) were adduced into evidence.  It was stated in the admitted facts that after the appellant’s arrest on 18 September 2016, he was remanded in custody; on 24 September 2016, Mok visited the appellant, whilst he was in custody; on 28 September 2016, the appellant was granted court bail; on 2 November 2017, the appellant visited Mok, who was then in custody; on 9 May 2018, police officers visited Mok, who was still in custody, for enquiry in relation to the present case and during a video record of interview arrested him for the offence of trafficking in dangerous drugs, “which are specified in the subject matter [Exhibits P1 to P3] of the count in the present indictment”; on 25 May 2018, Mok was charged with “a single count of trafficking in dangerous drugs, which are specified in the indictment of the present case”; and on 29 November 2018, Mok pleaded guilty to “that single count of trafficking and was committed to the High Court for sentence”.[2]

10.  The appellant also elected to give evidence but called no witnesses.  He testified that he knew nothing about the drugs in his car, and that they actually belonged to his friend, Mok.  He said that in the evening of 17 September 2016, he gave Mok a ride to Tai Wo Estate at Mok’s request.  He said at that time Mok chose to sit in the back seat of his car rather than in the front seat.  After he pulled over at the bus stop and Mok had alighted from his car, he noticed the cigarette packet lying on the floor of the car in front of the back seat.  Believing that it belonged to Mok, he picked it up and placed it in the pocket under the door handle next to the driver’s seat.  He did not open the packet to check its contents.

11.  At trial, it was in dispute as to whether the appellant in fact witnessed the car search being done, and whether he was shown the cigarette packet (exhibit P1) and its contents, consisting of the bags of drugs (exhibits P2 and P3).  It was his case, that he did not realise Ice had been found in his car until he appeared before the duty officer at Tai Po Police Station, to whom he stated that the drugs did not belong to him.  He claimed that he later informed PW3, the investigating officer of the case, that the Ice might belong to Mok.  When PW3 was cross-examined on this matter, he said that no record was made of the appellant making such a statement and he had no recollection of it having happened.  He added that anything which was of value to a case he would have made a record of it and he did not do so in this instance.

The involvement of Mok

12.  The central issue in this appeal is the involvement of Mok with the same batch of drugs that the appellant was also charged to have trafficked.  It will be necessary to go into some detail as to what was discussed and understood by the parties on this issue. 

13.  At a pre-trial review, on 8 January 2019, Ms Liza Yip, who represented the appellant, informed the judge she had preliminary instructions that Mok would give evidence for the defence.  She explained she had been informed that Mok would plead guilty to trafficking in the same batch of drugs.  Mr Sean Kelly, who represented the prosecution, noted that Mok had already pleaded guilty and he indicated that he intended to amend the indictment so that the count would plead that the appellant committed the offence together with Mok.[3] After discussing the logistics of the trial, the judge confirmed it would commence on 12 March 2019.

14.  On 4 March 2019, Mr Kelly, in compliance with the judge’s directions, submitted the prosecution case and a re-amended indictment, in which the count alleged that the appellant trafficked in the drugs together with Mok.  It was stated in the prosecution case that the prosecution would rely on Mok’s guilty plea in proving the joint enterprise element in the indictment.[4]

15.  On 11 March 2019, the judge raised a number of queries in relation to the prosecution’s reliance on Mok’s guilty plea to establish a joint enterprise with the appellant.[5] Mr Kelly, in a letter dated 11 March 2019, responded by noting that Mok would not be a prosecution witness and therefore his plea was irrelevant and not admissible.  He referred to relevant authority and attached several cases on point.[6] 

16.  On the first day of trial, 12 March 2019, the issue of Mok’s involvement in the case was again discussed by counsel with the judge.  Mr Kelly informed the judge that he would present the prosecution case on the basis that the appellant was acting on his own with no mention to be made of Mok or his guilty plea.  Ms Yip, on the other hand, after requesting time to consider the matter and taking instructions from the appellant, stated that she would not be calling Mok as part of the defence case. 

17.  It is important to know what was discussed and accepted by the parties, so we have set out the following relevant exchanges by counsel with the judge. 

“COURT: All right. Now, so let’s make clear about it as to whether the jury should be told the existence of Mr Mok, and if so, the fact that he had pleaded guilty, that is to be resolved, depending on …

MS YIP:  Right.

COURT:  … your client’s decision whether to call him.

MS YIP:  Yes.

COURT:  All right.  That’s one thing, and the other thing is about joint enterprise because, as I have already said, there is not a single reference to this whole committal bundle to Mr Mok.

MS YIP:  To say it’s joint enterprise.

COURT:  So there seems to be no evidential basis for Mr Kelly to put forward a case of joint enterprise before the jury.

MS YIP:  Yes.

COURT:  So what would you say about that?

MS YIP:  Well, I have already indicated to my learned friend it depends on my client’s instruction.  There is in fact …

COURT:  But in any way, it’s unlikely that your client’s instruction to you will be that he was acting in joint enterprise, isn’t it?

MS YIP:  Of course not, of course not.  Yes.

COURT:  All right.

MS YIP:  But on that basis, my Lord, my learned friend’s application to actually amend the charge to joint enterprise, something I resist on that basis at the moment. 

COURT:  So at the moment you object to the amendment, proposed amendment.

MS YIP:  Yes, yes.

COURT:  All right.”[7]   

18.  At this point, Mr Kelly confirmed that he would not be proceeding with the case on the basis of a joint enterprise because of the lack of evidence.

“COURT: So I take it that, Mr Kelly, you are not proceeding on the case of joint enterprise.

MR KELLY:  No. As your Lordship quite properly points out, there is no admissible evidence.

COURT:  At this stage.

MR KELLY:  At this stage, yes.”[8]

19.  Ms Yip requested time to take instructions from the appellant as to what would be the defence position in respect of Mok, and on the next day, 13 March 2019, she indicated that the defence did not intend to call Mok.

“MS YIP: My Lord, most grateful for the indulgence. In fact, I’ve already informed my learned friend. My instruction is that my client do not intend to call Mok Shu-ming, however …

COURT: Yes?

MS YIP: … the defence would like to call in evidence to show that Mok Shu-ming was arrested subsequently due to my client’s co-operation.

COURT: I think in which case we’ll need to ask Mr Kelly to tender certain officers for you to cross-examine.

MS YIP: Yes, I have already notified my learned …[9]

…

COURT: All right. But would that serve your purpose, by just establishing the fact that Mr Mok had been arrested?

MS YIP: I think so, but my -- I understand …

COURT: But how about …

MS YIP: … trying to do …

COURT:  … his subsequent guilty plea?  You see, the fact that somebody has been arrested for this offence, what does it mean?  Well, it’s a matter entirely for you, but I just wonder.  If I am the jury, you told -- you tell me that somebody else has also been arrested, what does it mean?”

MS YIP:  Well, you see, my Lord, as I said, it’s relevant to the defence and should the defendant elect to give evidence …

COURT:  All right.

MS YIP:  … then he would be able to because he’s been in and out to visit Mok.

COURT:  All right. I think -- you know your case better than me, so it’s a matter entirely for you.  All right, I just want you to know the relevancy of that.

MS YIP:  Because it’s just due to the issue we’re presenting to the jury …

COURT:  All right.

MS YIP:  that my client’s actively locating the real culprit when he found out what actually …

COURT:  All right.

MS YIP:  Yes.

COURT:  Thank you very much.

Now, in which case, then I think the consensus is that the prosecution will not be leading any evidence about the conviction of Mr Mok.

MR KELLY:  No. We maintain our stand that I indicated to your Lordship yesterday …

COURT:  All right, all right.

MR KELLY:  … that it is not relevant and therefore not admissible.

COURT:  All right.”[10]

20.  As a result of the discussions between the parties, Mr Kelly opened the prosecution case to the jury without any mention of Mok and presented the prosecution evidence on this basis.[11]  No other witnesses were tendered to address the arrest or guilty plea of Mok.  However, as already noted, PW3 was cross-examined that the appellant informed him that the drugs might belong to Mok, but he disputed this was said to him.[12]

21.  When it came to presenting the defence case, Ms Yip raised a query with the judge about adducing evidence of Mok’s involvement.  She indicated that she needed to take urgent instructions from her client or give him certain legal advice.  After the judge asked her what this was about she said:

“MS YIP: … It happens that there was the Admitted Facts that I thought that I could just set out a chronology of event and then let my client go up and explain what happened on those occasions and how step by step that Mok was found, and so he eventually revealed the whole thing to the police that this is the real culprit, this is the, you know, where the source of the …

COURT:  Yes.

MS YIP:  … things was.  But there are certain things that my learned friend said that they can’t agree, not even the fact that Mok has pleaded guilty to the charge of this entirety of drugs. That’s all I’m asking for.  And because when I gave my client the legal advice and, you know, I have given him other things to balance which I was maybe just too confident in thinking that these facts shouldn’t be disputed or …

COURT:  The problem is that as far as I can remember, it seems to me -- I may be wrong but it seems to me that Mok has pleaded guilty to a joint charge in the sense that he pleads guilty that he had trafficked the quantity of drugs together with.  So I think that may cause some difficulty on the part of the prosecution if you ask them just to confirm that Mok had pleaded guilty.  I don’t know whether that is the hurdle.

MR KELLY:  Well, I think, my Lord, if you look back at the answers I sent to your Lordship in response to the questions …

COURT:  Mm.

MR KELLY:  … I think the prosecution take the view that what happened to Mok is irrelevant.

COURT:  No, not really.  It depends because if you say that because Mok had pleaded guilty, therefore, this defendant is not guilty, that is -- the logic doesn’t really follow.

MR KELLY:  Of course, it doesn’t. Yes.

MS YIP:  Yes.  We are not expecting the …

COURT:  And it can’t be used that way either, but defendant was trying to use the fact to illustrate that he had nothing to do with the drugs.  But the fact that Mok had pleaded guilty doesn’t necessarily mean, as a matter of law, doesn’t necessarily mean the defendant is not guilty.  I think that’s the bottom line. 

MR KELLY:  Yes, yes.  But in that case, my Lord, it would seem therefore that how does it assist the jury if we put in that another person who is not on the indictment, who is not named as the …

…

COURT:  Yes.  So the fact, I think even if you are not going to agree to the fact that Mok had pleaded guilty, there is a way for Ms Yip to introduce that piece of evidence.

MR KELLY:  Well, put it this way.  My solution - not so much a solution - my objection is that it is not relevant and not admissible, and therefore I would seek your Lordship’s ruling on it.  If your Lordship were to say that it is admissible and it is relevant …

COURT:  It is …

MR KELLY:  … then I would be very happy to agree it.

COURT:  I think the admissibility really depends on admit for what purpose.”[13]

22. The judge queried what the defence was seeking to adduce into evidence about Mok’s involvement in order to determine its relevance.

“COURT: But in the present situation, they just want to, I think, if I understand it correctly, Ms Yip only wants to admit that the fact that Mok had pleaded guilty in order to show that that event was consistent …

MS YIP: With what the defendant said.

COURT: … with their case, with the apparent case that the drugs belong to someone else.

MR KELLY: Yes, yes.

COURT: I think for that limited purpose …

MS YIP: So the defence only need to prove my version is -- may be true.

COURT: Or that there was in fact a person who apparently is also - or not ‘also’ - is connected to the drugs.

MR KELLY: Yes, yes.

COURT: I think for that limited purpose, I don’t think that it can be said that it’s not relevant.

MR KELLY: Well, then and that I mean I would ask your Lordship formally to rule on that.

COURT: I will rule that it was relevant for that limited purpose.

MR KELLY: And then in that case, my Lord, I have no …

COURT: Yes.

MR KELLY: … I have no difficulty in …

COURT: Of course.

MR KELLY: … in agreeing that …

COURT: But …

MR KELLY: … that admitted fact.

COURT: Yes, I think the fact that somebody has pleaded guilty in relation to the same quantity of drugs has some relevance here for the limited purpose of showing that somebody has admitted liability for that amount of drugs.

MR KELLY: Yes, yes.

COURT: But that doesn’t necessarily mean that this defendant is not guilty of this or not liable for the same quantity of drugs. There are two different issues here.

MR KELLY: Yes.

MS YIP: That’s along the line that I advise my client.

COURT: Yes.

MS YIP: That’s right.[14]

…

COURT: All right, and now if counsel do not want to make further submission on this, I formally rule that the fact that Mok has been convicted of trafficking is relevant …

MR KELLY: Yes, all right, my Lord.

COURT: … in view of the fact that it is the defence case that the drugs actually belong to Mok. I think that is the defence case, and is it correct that it is your case that the drug actually belongs to Mr Mok?

MS YIP: Yes, yes.

COURT: Well, yes. And in that case, the fact that Mr Mok has pleaded guilty to the charge of trafficking would be relevant.

MR KELLY: All right.

COURT: Of course, that doesn’t necessarily mean that this defendant is not guilty of the charge.

MS YIP: And all the …

COURT: But this is a relevant factor, in my view, for the jury to take into account in order to assess the weight of the defence case.”[15]

23.  The judge anticipated that the admission into evidence of Mok’s guilty plea to trafficking in the same batch of drugs would affect the way the prosecution would present its case and how the appellant would be cross-examined on the matter.  In the discussion between counsel and the judge on this issue, it was mentioned that this evidence brought into question whether the appellant was in joint possession of the drugs with Mok, or whether the drugs were possessed by them at different stages.  It was noted that, as a consequence of the introduction of this evidence, the prosecution case may change to allege a joint enterprise.

“COURT: Now, the situation arises because you are going to introduce a piece of evidence showing that somebody else, Mr Mok, has claimed liability for the same quantity of dangerous drugs.

MS YIP: Yes.

COURT: Then I think naturally, Mr Kelly will seek to cross-examine the defendant on this, and it may well be that Mr Kelly will cross-examine the defendant on the basis of - I don’t know - joint possession …

MR KELLY: Yes, yes.

COURT: … or in fact the or at least, at the very least that the fact that the same quantity of drugs can be possessed by different person at different stages.

MS YIP: Yes.

COURT: So I think …

MR KELLY: Yes.

COURT: … so although Mr Kelly has previously made his stand clear in the absence of the jury that he is not going to put forward a case of joint enterprise in view of the state of the evidence then, the situation may change now.

MS YIP: Yes.

MR KELLY: Yes.

COURT: And I think that has to be appreciated.

MS YIP: I know. I’ve -- that’s why I said I needed proper advice given to my client.

COURT: All right.

MS YIP: I have already forewarned giving him that.

COURT: All right.

MS YIP: And -- but because my instruction, of course my instruction is he said, ‘No, I didn’t even know,’ so …

COURT: All right.

MS YIP: … he elects to give -- he is fully aware of that.

COURT: All right. I raise this …

MS YIP: Yes.

COURT: … so that nobody is under any misconception and it’s to be fair to the defence so that the defence will know what the prosecution may do, and I think is it in fact what the prosecution is going to do?

MR KELLY: Of course, we will, my Lord, yes, yes.

MS YIP: Sorry. You’re going to say Mok pleaded guilty to a joint enterprise?

MR KELLY: No, what I propose to say, subject to the evidence, is there is either one of two scenarios.

COURT: Yes.

MR KELLY: Either you were both involved in this transaction …

COURT: Joint possession.

MR KELLY: Joint possession. Or at one stage, Mok had it and then he passed it to you.

COURT: Yes, I think that is …

MR KELLY: And those are the two possibilities and I most certainly will, my Lord. That will be …

COURT: Yes, I think Mr Kelly has …

MR KELLY: … my attack on the defendant.

COURT: Yes, I think Mr Kelly has …

MS YIP: I didn’t quite put that finely. My Lord, just to be on the safe side, my poor client got to understand this.

COURT: I think you have to explain that to your client because that may have a bearing …

MS YIP: Yes, I have to explain. Otherwise, I’ll be failing on my duty. I’m most grateful for your Lordship pointing that out to me.

COURT: Yes, otherwise, I think this point has a bearing as to whether the defendant would like to give evidence or not, and it’s a matter entirely for him, and I think as to this, he is entitled to have full legal advice.”[16]

24.  As anticipated, in the course of the appellant’s testimony, Mr Kelly cross-examined him on the basis that he and Mok were either in joint possession or successive possession of the drugs.  The appellant denied that he was in possession of the drugs either solely or jointly with Mok.

25.  At the close of the defence case, the judge had further discussions with counsel about the state of the evidence of Mok’s involvement with the same drugs and the impact it would have on the present case.  He enquired of them whether there was a sufficient evidential basis for joint enterprise between the appellant and Mok in light of the admitted fact of Mok’s guilty plea and the evidence of the appellant.  He also queried whether the prosecution would seek to amend the indictment to allege a joint enterprise between the appellant and Mok.  In response, Ms Yip complained that it would be unfair to allow the prosecution to change its case to one of joint enterprise at such a late stage of the proceedings, and if that had been the prosecution case from the outset, the defence may have decided to call Mok as a witness.  The judge seemed to accept that joint enterprise was not available on the evidence, and raised for consideration as an alternative, that the prosecution could present its case on the basis of joint possession in respect of the count in the indictment.  This appears to have been accepted by Mr Kelly as well as by Ms Yip, although she seemed to express some reservation, noting that joint possession still amounted to a joint enterprise. 

26.  As this became the way the judge directed the jury with the acquiescence of counsel, it is important to set out the judge’s exchange with counsel on the matter:

“COURT: Now, Mr Kelly, from the way you cross-examined the defendant, it seems to me that there appears to be two bases for you to say that the defendant was guilty of trafficking. First of all, it’s that he was in possession of the dangerous drug for the purpose of trafficking, what we used to say DDPT.

MR KELLY:  Yes, yes.

COURT:  The other basis is that you and -- that he and Mr Mok were in it together.  They assumed different roles in the matter.

MR KELLY:  Yes.

COURT:  That is a different basis, it seems to me.

MR KELLY:  That’s correct, my Lord, yes.

COURT:  A basis of joint enterprise …

MR KELLY:  Yes, yes.

COURT:  … or a -- or that they were acting in a joint enterprise, each assuming a different role …

MR KELLY:  Yes.

COURT:  … so that the question about possession becomes less important …

MR KELLY:  Yes, yes.

COURT:  … because even if the second basis is correct, then even if the defendant did not have possession at the material time, if he knowingly took part in a joint enterprise of trafficking, he would still be …

MR KELLY:  That’s correct, my Lord.

COURT:  … in court.  So there are two different bases here.

MR KELLY:  Yes, yes.

MS YIP:  I think so, yes.

COURT:  All right.

MR KELLY:  Yes.

COURT:  Just that I understand so that …

MR KELLY:  That’s …

COURT:  … I would like to -- I would need to direct the jury on the issue of joint enterprise.

MR KELLY:  Yes, you will, my Lord.

COURT:  All right.

MS YIP:  But about the joint-enterprise part, it wasn’t in the charge in the -- it was not …

COURT:  Sorry, I can’t hear you.

MS YIP:  The charge itself didn’t say that he was …

COURT:  You do not need to but -- he did not need to because even if they name a person in the charge sheet, they are saying that he was together with, it will still be a joint and several charge anyway.

MS YIP:  Very well.

COURT:  But the thing is those words cannot be added at that stage because there was no evidence of that.  But now that we have the Admitted Facts, the situation may be different.

MS YIP:  Okay.

COURT:  All right?  But I’m open to persuasion if you have further to say on this point, but at this moment, I just notice that Mr Kelly is putting his case on two different bases.[17] 

…

COURT:  Actually, I would like to hear from you whether joint enterprise is …

MS YIP:  Exactly.  That’s the bit that I need to do …

COURT:  … whether there is sufficient evidential basis for joint enterprise.

MS YIP:  Yes.

COURT:  But at this moment, we do have the evidence of this defendant telling us that on that particular night, he was with Ms Mok -- Mr Mok.

MS YIP:  Yes.

COURT:  And Mr Mok, and that package apparently belonged to Mr Mok.  So there is some basis, although whether it’s to say it’s sufficient of -- a basis of sufficient weight is open to argument, but there seems to be some basis to say that they were acting together.  All right.  …”[18] 

…

COURT:  Another issue is that because Mr Kelly is now running a case of joint possession or …

MR KELLY:  Or …

COURT:  … joint enterprise, so it may be more tidier if that is in fact your attention, and subject to what Ms Yip is going to say, to amend the indictment so as to add the word to that effect.

MR KELLY:  To add the ‘together with’ piece?

COURT:  Add ‘together with’ …

MR KELLY:  Yes.

COURT:  … because now that there is some evidence for it.

MR KELLY:  Yes.

COURT:  Prior to that, prior to the defendant’s giving evidence, we did not know who had been in the car at all apart from the defendant.

MR KELLY:  Correct, yes, yes.

COURT:  But now the situation may be different..

MR KELLY:  Yes.

COURT:  I don’t know.

MR KELLY:  Yes, yes.

MS YIP:  My Lord, I may have run in a bit of difficulty with that.  Then if that was the case, had it been a joint enterprise all along, my client’s decision may be that he would call Mr Mok directly …

COURT:  Yes, yes, the …

MS YIP:  … rather than doing it this way.

COURT:  I appreciate that.  Another thing is that may not be necessary.  I think I’m just thinking aloud about the basis of -- I’m just thinking aloud because Mr Kelly has cross-examined the defendant on the basis of a joint enterprise.

MS YIP:  Yes.

COURT:  Of course, the defendant denied that but there is now before the jury some evidence that if the jury accept that Mr Mok had been in the car and the defendant was giving Mr Mok a ride, so there may be some evidence of a joint enterprise.

MS YIP:  That’s why I said I need to do a bit of research on that now that the defendant is only facing this one, and all along, throughout the entire case, the prosecution produced nothing to say that there was another person there.  And in fact, at the start of this case, they knew that we kept saying all along that there was another person there, and in fact the beginning of the conversation with the sergeant - my client didn’t lie about it - the sergeant said, ‘What are you doing here?’ ‘I’m waiting for a friend.’ 

     So the prosecution knew their case all along and it appears that, you know, now that my client presented Mr Mok, Mr Mok has, you know, admitted to everything, they are trying to -- having a second bite of the cherry.

COURT:  But if your case -- but in case you were right, then that would mean that the only basis for them is -- then the basis of joint enterprise would not be available to them.

MS YIP:  Yes, that’s what I’m …

COURT:  But that would be a different issue about joint possession because they can still run the case of joint possession.

MS YIP:  Yes, of course.

COURT:  So it very much depends on the...

MS YIP:  They could still run the fact that my client knew all along or even that mistake...

COURT:  So it very much depends on Mr Kelly will hold onto the basis of joint possession and not proceeding with joint enterprise, and in which case then if he has limited himself to either joint possession or successive possession...

MS YIP:  Yes.

MR KELLY:  Yes.

COURT:  ...namely that he got it from Mok and kept it...

MS YIP:  Yes.

COURT:  ...and that would -- if it is a case of either successive possession or joint possession, then that would do away with joint enterprise.

MS YIP:  We’re still talking about only possession, yes.

MR KELLY:  I can agree with that, my Lord, and I’m happy to use that formula.

COURT:  And in which case then I think you’ll have to tailor your closing speeches to just joint possession...

MR KELLY:  Yes, yes, I...

COURT:  ...or successive possession, whatever you may...

MR KELLY:  Yes, one or the other which is I think the basis I indicated.  This really only arose from the point that the defence put in the mention of Mok …

COURT:  All right.

MR KELLY:  … being trafficked.  So I think it’s only fair to prosecution to explore that aspect.

COURT:  So would you still need time to do your research in which case, Ms Mok -- Ms Yip?

MS YIP:  Yes, I would be grateful if I could.  No, my Lord.  I think I’m quite happy with it.

COURT:  All right.  Now, Mr Kelly, if you are restricting yourself …

MS YIP:  I don’t know what …

COURT:  … to joint possession or successive possession, then perhaps given the indication of Ms Yip that she is not objecting to those, then I think we can ask the jury back and you can respond.

MR KELLY:  Yes, I’m happy enough to use -- to do that, my Lord.

COURT:  All right.  Thank you. 

MR KELLY:  Yes.

COURT:  Yes.

MS YIP:  All right.  Sorry, sorry, sorry.  My Lord, in fact if he is -- my learned friend is saying joint possession or successive possession, he is still saying that there seems to be a certain amount of joint enterprise, my Lord.

COURT:  But it very much depends on how I direct the jury.

MS YIP:  Yes.

COURT:  If I direct them only on the possession for unlawful trafficking, then that will do away with...

MS YIP:  Yes, okay, yes.

COURT:  Then -- and I would emphasise to the jury...

MS YIP:  But with...

COURT:  ...that that would be the only basis for them to convict the defendant if they...

MS YIP:  Yes.

MR KELLY:  Right.

COURT:  ...are sure that the defendant was in possession of the drug...

MS YIP:  Yes.

COURT:  ...and...

MS YIP:  ...and then the defence is all along, although he is in physical possession, he didn’t know right from the beginning till the end anyway. 

COURT:  Yes.

MS YIP:  That’s our case, yes. 

COURT:  All right.  Okay.”[19]  (Emphasis added)

27.  From this exchange, it is apparent that Mr Kelly indicated he would address the jury on the basis that the appellant possessed the drugs either solely or jointly with Mok and in either capacity he possessed them for the purpose of trafficking.  This was eventually accepted by Ms Yip.

The prosecution’s closing speech

28.  In his closing speech, Mr Kelly presented the main issue before the jury in the following way:

“… the main issue for you to consider is whether or not the defendant, Mr Wong, first of all, whether he was in possession of that cigarette packet at the bus terminus. And if he was in possession, whether he knew that it contained drugs, contained ‘Ice’. He doesn’t have to know the nature of the drug, but that it contained ‘Ice’.

And the prosecution presents its case in this way, that at that time the defendant either had joint possession of the drugs with Mr Mok whom you have heard has pleaded guilty to trafficking in this quantity of drugs, whether they had joint possession or what might be described as successive possession. In other words, that the drugs have been passed on to the defendant and that they were his sole -- he was in sole possession of them knowing, of course, that they had -- that they contained drugs. And, finally, and I’ll deal briefly with this though his Lordship will direct you on it, you have to be satisfied that the purpose of possession of the drugs is for the purpose of trafficking.”[20]

29.  He then addressed and summarised the evidence of the appellant, during which he stated:

“… the prosecution suggests to you that on that journey and at the location until Mok got out that the defendant and Mr Mok were in joint possession of that cigarette packet. Right. That they both knew it contained drugs. …”[21]

30.  He went on to explain to the jury how the evidence supported that the appellant and Mok were in joint possession or successive possession of the drugs:

“The prosecution suggests that the defendant moved the packet to beside the driver’s seat because he knew at that stage that it contained drugs. And the reason why he was taking -- nobody -- he certainly didn’t know the price of a packet of cigarettes. The reason he was particularly interested in this or taking particular care of it is because he knew it was more valuable than any packet of cigarettes. It’s worth -- you can see there it’s worth over HK$4,000. So that’s why he has particular interest in it and that’s the basis on which the prosecution says to you that this was one of two situations. It was either a joint possession by Mok and by the defendant or what we might term successive possession. In other words, possession had passed from Mok to the defendant and at the time when possession passed both of them knew that there was -- that that was drugs. So we say joint possession.

Now, we know that Mok has pleaded -- we know from the Admitted Facts that Mok has pleaded guilty to trafficking in dangerous drugs, the drugs which are the subject matter of this charge, P1, P2, P3. But the situation is -- and again his Lordship will explain to you -- that two people can possess an object. Even though Mok has pleaded guilty, there is nothing in that guilty plea that precludes the defendant from having had joint possession at the time. Of course, his Lordship will explain it’s a matter you take into account. But what the prosecution says is that either it was joint possession, in other words Mok and the defendant, and Mok has admitted his guilt, or successive possession in the sense that Mok had the drugs and Mok says, ‘Well, I’m pleading guilty,’ and then he hands it over to this defendant who then takes possession of it and possession knowing -- knowing that it contains drugs.”[22]

31.  He then returned to the two alternative forms of the appellant’s possession of the drugs when he discussed what was meant by trafficking in a dangerous drug.  He said:

“Now, the issue of trafficking, again, you have been told a definition of trafficking, but again his Lordship will tell you exactly what trafficking is. But as I say, what the prosecution here says is that the defendant either jointly with Mok or after Mok had given away possession of the drugs, that he possessed -- that the defendant possessed those drugs for trafficking. And what we say is that he had them for dealing in or dealing with. Now, trafficking is a very, very wide concept and again his Lordship will direct you on the law and if what I see is different from what he says you must accept his directions. But what happens is that any dealing in or handing to or storing or anything like that for someone else, keeping it for someone else, that amounts to trafficking.”[23]

“… it’s for the prosecution to prove the guilt of an accused and the prosecution must prove it to a high standard so that you are sure. But in this case the prosecution says that all these surrounding circumstances, the night, the time, the location, the packaging, etc, that all those factors put together would allow you to be sure, to be sure that there was either joint possession by Mok and Wong or that at the time when the drugs were found that possession had passed from Mok to Wong and Wong possessed them himself and that because of the way they were packaged he possessed them for the purpose of trafficking. …”[24]

The defence closing speech

32.  Ms Yip highlighted the issue for the defence in the following way:

“The main issue in this case, as my learned friend already highlighted, is at the time when the defendant was found inside that car in the physical proximity of that packet of cigarette package inside contained dangerous drugs did he have knowledge of what was inside, be it in the beginning at the back. His evidence is that it belongs to Mok. He didn’t know anything about it -- anything about it. In fact, he went as far as he didn’t have any reason to suspect that Mok was, in fact, involved in dangerous drugs.”[25]

33.  In the course of Ms Yip’s closing speech, she variously addressed the involvement and relevance of Mok, including in respect of the issue of joint possession.

“Now, we now know that at that time, in fact, he wasn’t alone. He had Mok with him. Even if he couldn’t think of it himself, if he and Mok were joined together knowing -- he knew that Mok’s packet of cigarettes was dangerous drugs, Mok would have told him to keep out of sight maybe. But he -- well, it’s obvious that Mok probably didn’t know that he dropped his packet of cigarettes inside the car, otherwise Mok at least before he leaves giving him the packet and saying, ‘Stay out of sight. That’s -- there you are, a packet of dangerous drugs.’ That didn’t happen. He sat there quite happy playing his game, his phone, waiting until the sergeant come over.[26]

…

He told you that even Mok was there. He had no reason and nothing to suspect that Mok was in any way connected with dangerous and, indeed, more importantly, no evidence from the prosecution saying that the defendant had any reason to suspect that Mok has any involvement with dangerous drugs at all. And, in fact, the prosecution wouldn’t -- the police wouldn’t even know about the existence of Mok until the defendant himself had presented -- located Mok and presented him to the police.[27]

…

… But this defendant himself, to his credit, he has done everything that he could to find the real culprit, Mok, to have him brought before the court and have him presented to the police to prove his own innocence, to prove that he wasn’t the real culprit or the owner or in any way that he was with Mok in joint possession of that packet of dangerous drugs.[28]

…

All the prosecution, if I may submit, presented to you are nothing. At best it’s only suspicion. They have no concrete or solid evidence to show or to support that their allegation against the defendant about him knowing that there was dangerous drugs and about him was in any way taken -- you know, successive possession of the dangerous drugs or with the successive knowledge that the dangerous drugs were there. …”[29]

The judge’s discussions with counsel after closing speeches

34.  After counsel had presented their closing speeches, the judge opened up for discussion the directions he should give to the jury.  Mr Kelly expressed the hope that he had put his case in a way which limited the allegation against the appellant to one of joint possession without engaging joint enterprise as a basis of liability.[30]  The judge then disclosed how he proposed to direct the jury and both counsel agreed with his intended directions.[31]

35.  During the course of this discussion, the following exchanges took place.

“MR KELLY: And hopefully in my closing I put it in a manner that doesn’t introduce joint enterprise …

COURT: Yes.

MR KELLY: … But rather joint possession …

COURT: Yes.

MR KELLY: … or successive possession.

COURT: Now, as to the matter about the basis of the prosecution case, I propose to tell the jury this. That for the present purpose so far as it is relevant to the present case …

MR KELLY: Yes.

COURT: … trafficking in a dangerous drug includes supplying or otherwise dealing in or dealing with a dangerous drug and that is standard.

MR KELLY: Yes.

COURT: This also includes possession of a dangerous drug for the purpose of any of the aforesaid purposes.

MR KELLY: Correct, yes, my Lord.

COURT: Therefore if a person knowingly possesses a dangerous drug for the purpose of supplying it to the others, that in law amounts to trafficking.

MR KELLY: Yes.[32]

…

COURT: Now, that comes to the more important part. In the present case, the prosecution put its case on the only basis that the defendant was at the material time in possession of the ‘Ice’ for the purpose of trafficking. Therefore, you can only convict the defendant of the charge if you are sure that the prosecution has proven that at the place and on the day as alleged in the indictment:

(1) the defendant was in possession of the dangerous drugs, P2 and P3, which was -- which were inside the cigarette box, P1;

(2) he knew that the things inside P1 were a kind of dangerous drug; and

(3) he possessed P2 and P3 for the purpose of trafficking. The prosecution must prove all three of the above matters before you can be sure -- before you can convict the defendant of trafficking.

MS YIP: My Lord, the possession itself, there is a physical close proximity kind of possession.

COURT: Yes, that is …

MS YIP: The law says possession must have …

COURT: … that is covered in the later part of my …

MS YIP: Yes.

COURT: … of my summing-up and that is the standard direction that a person’s mere presence in the vicinity of an object is not itself possession.

MS YIP: Thank you. It’s not in law the …

COURT: Yes, actually the part that I just -- I have just read to you, what I want to emphasise is that that is the only basis for the prosecution case …

MS YIP: Yes.

COURT: … namely possession for the purpose of unlawful trafficking.

MS YIP: Yes, that’s right.

MR KELLY: Yes, yes.[33]

…

MS YIP: My Lord, I’m wondering, you said about Mok’s plea of guilty. I think I have already dealt with that.

COURT: Let me just retrieve the relevant part of Mok pleading guilty. Yes.

MS YIP: Yes, I think my -- the defence standpoint is twofold. First of all, Mok, obviously he wasn’t at the scene and in fact nothing at the scene connected him with the dangerous drugs or packet or even connected him with the scene except my client’s evidence and that it was my client who proactively produced Mok to the police. And, well, obviously what we have done was that we say the defendant has produced the true culprit to the police. We’re not saying that he actually, you know, has said anything to exonerate my client or anything, you know, so it’s up to your Lordship to deal with that part.

COURT: So what exactly would you like me to tell the jury?

MS YIP: What I’m more -- what I’m more worrying about is that Mok was at the end of the day not called as a witness.

COURT: Well, actually I propose to tell the jury at the outset that the defendant has no duty to give evidence or to call any witnesses.

MS YIP: Yes.[34]

…

COURT: Yes, all right. Now, as far as Mok’s guilty plea is concerned, I would like to -- first of all, I would draw them to the relevant part of the Admitted Facts and then I will say that the fact that Mok has pleaded guilty to trafficking in the ‘Ice’, which is the subject matter of the charges made known to you. I have already -- I have already directed you on the elements of the offence of trafficking, in particular, the concept of successive possession and joint possession.

MR KELLY: Yes.

COURT: Now, the prosecution is saying that the defendant and Mok were either in successive possession or joint possession of the ‘Ice’ for the purpose of trafficking.

MS YIP: Yes.

COURT: The defence case is that Mok was acting on his own and the defendant knew nothing about it.

MS YIP: Yes, that’s right, that’s the very basis.

COURT: Members of the jury, you must concentrate upon the case of the defendant alone and decide whether the evidence before you makes you sure of his guilt.

MS YIP: Yes.

COURT: If the prosecution were right that the defendant -- that the defendant was either in successive possession or joint possession of the ‘Ice’ with Mok, then the fact that Mok had pleaded guilty can have no bearing on your decision in the case of the defendant.

On the other hand, if you consider that having taken into account all the evidence including Mok’s guilty plea, you cannot be sure of the defendant’s guilt in that what the defendant said about his not having possession or knowledge of the ‘Ice’ is true or may be true …

MS YIP: Yes.

COURT: … then you must return a verdict of not guilty.

MS YIP: Thank you.

COURT: Is that all right?

MS YIP: That’s fine. [35]

COURT: All right.

…

COURT: So unless counsel have any other things that you would like me to direct the jury on, I think that’s about it.

MS YIP: Yes.

MR KELLY: Not from the prosecution.

COURT: By all means if after tonight or after listening to my direction on law you spot anything by all means inform me. I can still have -- I will still have time to make any supplement or correction before I summarise the evidence to them.

MS YIP: Certainly. Certainly.

COURT: All right?

MR KELLY: Yes, my Lord.”[36]

36.  Ms Yip agreed with the judge’s proposed directions that the jury were to decide whether the appellant alone was guilty of the count on the basis that he was in successive possession or joint possession of the drugs for the purpose of trafficking.

The judge’s summing-up  

37.  We now turn to the judge’s summing-up in which he addressed the issues as agreed and accepted by counsel.  So far as material, the judge said:

“ In the present case the prosecution put its case on the sole basis that the defendant was at the material time in possession of the ‘Ice’ for the purpose of trafficking. Therefore, you can only convict the defendant of the charge if you are sure that the prosecution has proven that at the time and place as stated in the indictment that:

(1) the defendant was in possession of the dangerous drugs, P2 and P3, which were inside the cigarette box, P1;

(2) he knew that the things inside P1 were a kind of dangerous drug;

(3) he possessed P2 and P3 for the purpose of trafficking.

The prosecution must prove all of the above three matters before you can convict the defendant of the charge.

Now, the first matter: possession. A person is in possession of an object if it is in his actual physical custody; for example, in his hand or on his person, or is otherwise within his control, for example, kept in his flat or in his bedroom and he knows where it is and has the intention to exercise custody and control over the object.

Please note that a person can be in possession of an object even if he is not its owner. The one who possesses may not necessarily be the same as the one who owns it. I repeat the one who possesses may not necessarily be the one who owns. In other words, ownership is not important for the concept of possession.

Let me illustrate this with the following example. You see that I am holding this pen. I am not its owner. The government is. It was assigned to me for my use. But since the pen is in my physical custody and I have the intention to exercise custody or control over it by keeping it or doing whatever I like with it, as such, I am in possession of this pen.

Now, there is a second example. I have another pen in my office. It is not with me now but I know where that pen is and I also have it with me within my control. Besides, I have the intention to exercise custody or control over that pen that is now in my office. Then in this case even if the pen is not with me now, it is still in my possession.

Let us consider a third example. If there is a pen in my briefcase which I carried to work this morning but I am not aware of the existence of that pen, for example, because my wife had put it into my briefcase without letting me know, then I am not in possession of that pen which is still in my briefcase. Why? To put it simply a person is not in possession of an object if he is not even aware of its existence. The reason is simple. If one does not even know that an object exists then he would not have the intention to exercise custody or control over it.

Thus a person’s mere presence in the vicinity of an object is not in itself possession of it. For example, if a person is invited for dinner to a friend’s home, he is not then in possession of the objects in the friend’s home. Simply because he is there and knows that the objects are there, the objects are not in his physical custody and he has neither the intention nor the authority to exercise control over those objects.

Applying the above to the present case it would not be sufficient for the prosecution just to prove that the defendant was at the material time near the cigarette box containing the dangerous drugs. It is also not sufficient for the prosecution just to show that the defendant was in control of the cigarette box. The prosecution must also prove that the defendant knew that there were things inside the cigarette box, that he was in control of those things and that he had the intention to exercise custody or control over those things that were inside the cigarette box. If all those matters are established, then the defendant would have possession of the things inside the cigarette box.

In the present case, the prosecution says that it was either that Mr Mok had at some stage passed the possession of the ‘Ice’ to the defendant or that the defendant and Mr Mok had been in joint possession of the ‘Ice’.

Now, an object can be possessed by different people at different times. Suppose I pass this pen to my clerk so that she is able to keep it and use it as and when she likes and if she also has the intention to exercise control and custody over this pen then she will have possession of the pen from the time I pass the pen to her. In this case, I and my clerk are in successive possession of the pen; that means one possessed it after the other at different times.

Furthermore, an object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place and that any of them may go there to take or move some of the articles as and when they see fit, then all are in control of the product in the sense that I have described, control, and all are in possession of it.

For example, my colleague and I both agreed to pool together the law books that are assigned to us by the government and put them in my office so that either of us can go to my office and take any of the law books away as and when we see fit, then all of us are in control of all of the law books and all of us are in possession of them. This is a situation of joint possession. The law books are in the joint possession of my colleague and I. In the present case, however, if you are sure that the defendant was in possession of the ‘Ice’ at the material time then it would matter not whether he got it from Mok or he was in joint possession of it with Mok.

So much about possession, I now turn to the second matter, knowledge. Apart from proving that the accused was in possession of the things inside the cigarette box, P1, the prosecution has also to prove that the defendant knew that those things were a kind of dangerous drug. It is not sufficient for the prosecution to prove that the defendant knew that the things were something illegal. It is also not sufficient to prove that he suspected that they were a dangerous drug. In order to obtain a conviction the prosecution has to make you sure that the defendant knew that the things inside the cigarette box were dangerous drugs. Nothing less will do.”[37] (Emphasis added)

38.  The judge went on to address the evidence and when referring to the admitted facts relating to Mok, he said:

“ As to (c) the fact that Mr Mok has pleaded guilty to trafficking in the ‘Ice’, which is the subject matter of the charge, is made known to you. I have already directed you on the elements of the offence of trafficking; in particular, the concept of successive possession and joint possession. Now, the prosecution is saying that the defendant and Mok were either in successive possession or joint possession of the ‘Ice’ for the purpose of trafficking. The defence case is that Mr Mok was acting on his own and the defendant knew nothing about it.

Now, you must concentrate upon the case of the defendant alone and decide whether the evidence before you makes you sure of his guilt. If the prosecution were right that the defendant was either in successive possession or joint possession of the ‘Ice’ with Mr Mok, then the fact that Mr Mok had pleaded guilty can have no bearing on your decision in the case of this defendant.

On the other hand, if you consider that having taken into account all the evidence including Mr Mok’s guilty plea you cannot be sure of the defendant’s guilt, in that, what the defendant has said in his evidence about his not having possession or knowledge of the ‘Ice’ is true or may be true, then you must return a verdict of not guilty.”[38] (Emphasis added)

The grounds of appeal

39.  When the Single Judge granted leave he expressed the following concerns about the appellant’s case:

(a)  whether the distinction drawn by the judge between joint possession and joint enterprise was a valid one in the circumstances of this case;

(b)  if this was, in reality, a distinction without a difference, whether the evidence allowed of an inference of joint enterprise;

(c)  whether the evidence allowed of an inference of successive possession; and

(d)  whether the judge’s directions on the law were correct and whether his directions on the evidence were sufficient to enable a jury to know how they might reason a conviction on the basis of joint possession or successive possession.

40.  Mr Eric Cheung, for the appellant, has crystallised the Single Judge’s concerns into two grounds of appeal.  The first ground is that the appellant did not receive a fair trial because the judge misdirected the jury on the issue of joint possession (Ground 1).  The second ground is that the judge failed to direct the jury on the alternative verdict of simple possession (Ground 2).

Ground 1: The misdirection on joint possession

Appellant’s submission

41.  Mr Cheung made two points in support of this ground.

42.  The first point was that the distinction between “joint possession” and “joint enterprise” was a distinction without a real difference in law, as the prosecution case was not a joint possession per se, but a joint possession for the purpose of trafficking.  To this end, it had to be shown that the appellant and Mok both intended to possess the drugs for the purpose of trafficking.  He submitted that not only was there concern about the sufficiency of evidence to establish a joint enterprise, but the prosecution case had not been opened on this basis, and in the absence of any formal amendment of the count to this effect, this resulted in unfairness to the appellant.[39] He noted that if the prosecution had sought leave to amend the count, the judge would have exercised his discretion either to refuse leave, or grant leave on the basis that the defence would be allowed to call Mok.

43.  Mr Cheung further submitted that the judge erred in thinking that there was sufficient evidence for “joint enterprise” or “joint possession”, given that the admitted fact of Mok’s guilty plea was ruled admissible for the limited purpose of showing consistency with the  defence case.  He noted that the only evidence of what took place between Mok and the appellant and how the cigarette packet came to be placed near the door handle of the car came entirely from the appellant.   He submitted that if the appellant’s evidence was rejected by the jury, as urged upon them by the prosecution, then there would be no evidence to support a case of joint possession.

44.  The second point was that the judge had not given the additional directions as suggested in HKSAR v Li Jin[40], namely that the exercise of control required proof of more than knowledge and acquiescence, in the sense that it must be proved that the defendant did something to advance or promote or encourage the possession in order to establish joint possession.

45.  In his written submission, Mr Cheung submitted that it could be inferred from the jury’s verdict that they rejected the appellant’s evidence that he had no knowledge of the drugs.  Although he noted that it remained unknown whether the jury found the appellant’s version of picking up the cigarette packet left behind by Mok was true or might be true.  He argued that if the jury accepted this evidence together with the prosecution’s line of argument, that the appellant either knew Mok was carrying with him the drugs inside the cigarette packet, or opened the cigarette packet upon picking it up and then acquired knowledge of its content before placing it in the pocket under the door handle, then this warranted the additional direction suggested in Li Jin.  Mere knowledge and acquiescence were therefore insufficient to sustain an offence of trafficking in respect of joint possession in the present case.

46.  Mr Cheung raised a collateral point in his written submission which can be briefly dealt with.  He submitted that the judge did not explain to the jury that if the appellant and Mok jointly possessed the drugs, any supply or delivery by the appellant to Mok would not constitute trafficking.  In support of this argument, he relied on the case of R v Wong Wing Yui and Another[41], which concerned two defendants who were in possession of drugs for their own consumption.  The Court held that in those circumstances they were not necessarily in possession of the drugs for the purpose of trafficking.  This was explained by the Court in the following terms:

“… where joint possession is accepted as being for the personal consumption of those who jointly possess - and we would emphasise that we are considering the particular facts of this case which are, as the trial judge put it, “unusual” - then those who are in such possession are also in the position of one who “handles” and are not necessarily in possession of the drugs for the purpose of unlawful trafficking.”[42]

47.  As is apparent, this case has no application to the facts and circumstances of the present case.  There was no evidence, nor was it ever asserted, that the drugs were for the personal consumption of the appellant and/or Mok. 

48.  We note that in any event, as acknowledged by Mr Cheung, the judge explained to jury that “carrying or dealing with dangerous drugs for one’s own purpose is not trafficking.  However, if such conduct is done on behalf of others, it is trafficking.”[43]

49.  There was no need for the judge to direct the jury as suggested by Mr Cheung, in light of the facts and circumstances of the case and what was in issue.

Respondent’s submission

50.  Mr Derek Wong, for the respondent, submitted the prosecution case was all along that the appellant himself was in actual possession of the drugs, and that the concepts of “joint possession” or “successive possession” were simply a means to explain to the jury that the admission of criminal liability by Mok did not necessarily absolve the appellant of criminal liability.  

51.  Mr Wong submitted that the judge had correctly stated the position, when he told the jury that: “In the present case, however, if you are sure that the defendant was in possession of the ‘Ice’ at the material time then it would matter not whether he got it from Mok or he was in joint possession of it with Mok.”[44]  He argued that the focus of the prosecution case was on whether the appellant was in actual possession of the drugs, in either capacity, for the purpose of trafficking. 

52.  Mr Wong contended that there was sufficient evidence to support the proposition of successive possession.  The appellant was in actual and sole physical control of the drugs immediately prior to his arrest, and it was an admitted fact that Mok had been in possession of the drugs for the purpose of trafficking on that day. 

53.  Mr Wong argued that the cases relied on by Mr Cheung on the issue of joint possession could be distinguished.  The cases of Li Jin[45] and R v Kousar,[46] concerned joint possession of drugs in a matrimonial home, while the cases of R v Jacobs[47]and R v Arshad (Tariq),[48] concerned illegal items found in premises where the defendants lived with others.  He submitted that it was under such special circumstances, that the law required more than knowledge and ability to control,[49] and hence the need for an additional direction to address the particular circumstances of the case.  This additional direction was not necessary in the present case.

54.  Mr Wong submitted that the judge specifically told the jury the prosecution had to prove that the appellant knew there were things inside the cigarette packet, that he was in control of those things, and that he had the intention to exercise custody or control over those things inside the cigarette packet.  The judge also went on to explain to the jury they had to be sure that the appellant knew the things inside the cigarette box were drugs, and that the prosecution case was either Mok had at some stage passed possession of the drugs to the appellant or the appellant and Mok were in joint possession of the drugs. 

55.  As for the complaint that the prosecution did not seek leave to amend the indictment, Mr Wong submitted that the appellant suffered no prejudice as defence counsel was well aware of the situation, and in any event she was the one who insisted putting into evidence Mok’s guilty plea.  He added that it was the manner by which the defence case was conducted, adducing into evidence Mok’s guilty plea, that brought about the change in circumstances that necessitated the prosecution to address the evidence that was then before the jury.  As a consequence, prosecuting counsel made it clear that he would cross-examine the appellant, if he gave evidence, on the issue of successive possession and joint possession.  The appellant was cross-examined on this basis, and at the conclusion of his evidence it was open to the defence to call Mok to give evidence but elected not to do so. 

56.  Mr Wong noted that whilst defence counsel complained that she might have called Mok if the prosecution case had been one of joint enterprise, she did not elect to apply to re-open the defence case and was content for the issue to focus on successive possession and joint possession.

Discussion

57.  In order to address the issues that are engaged in this ground, it is necessary to briefly examine the events that led the prosecution to incorporate as part of its case successive or joint possession of the drugs by the appellant and Mok, and determine whether this constituted a material irregularity or resulted in a miscarriage of justice.

58.  When the appellant was arrested for this offence on 18 September 2016, he was the only suspect.  After his arrest, the appellant had meetings with Mok, and eventually Mok was interviewed by the police, during which he was arrested for trafficking in the drugs in the present case.  On 25 May 2018, Mok was formally charged for the offence of drug trafficking, to which he pleaded guilty on 29 November 2018.  This much was set out in the admitted facts produced before the jury as part of the defence case.  However, there was no mention in the admitted facts, nor was any evidence presented to the jury, that Mok entered his plea of guilty on the basis that he committed the offence on 18 September 2016 together with the appellant.  Rather, this information was contained in the indictment and the summary of facts before the court when Mok pleaded guilty to the offence. 

59.  Early in the proceedings of this case, prosecuting counsel considered whether to proceed against the appellant on the basis that the appellant committed the offence together with Mok.  However, he came to the view that he would not be able to prove Mok was involved in the present offence, unless Mok was willing to give evidence for the prosecution.  At that stage, the only evidence of Mok’s involvement in this offence was his confession.  The cigarette packet had been examined for fingerprints but no mark of any value was found.

60.  At trial, prosecuting counsel proceeded to prove the case against the appellant, without reference to Mok, and on the basis that the appellant was found in possession of the drugs in circumstances that showed it was for the purpose of trafficking.

61.  It was only when it came to the presentation of the defence case was evidence presented to the jury of Mok’s connection to the drugs in the present case.  Instead of calling Mok as a defence witness, defence counsel was able to obtain the prosecution’s agreement to a set of admitted facts that revealed for the first time to the jury that Mok trafficked in the same batch of drugs.  The defence case was that the drugs belonged to Mok and the appellant had no knowledge of or involvement in the drugs. 

62.  The admitted facts that revealed the involvement of Mok had been agreed after a ruling from the judge that the evidence of Mok’s guilty plea to the trafficking offence was relevant to the appellant’s defence that the drugs did not belong to him.  Prosecuting counsel indicated that as a consequence, if the appellant elected to give evidence, he would cross-examine him as to whether he committed the offence together with Mok.  This was done as a matter of fairness to put the appellant on notice that, having raised the issue of Mok’s connection to the drugs, the prosecution would explore the matter if he testified.  The focus of the case then changed to address Mok’s connection to the drugs. 

63.  When the appellant testified, prosecuting counsel put to him that he committed the offence together with Mok, or that if Mok had possession of the drugs, he took possession of them after Mok had left the car.[50] The appellant denied this was the case. 

64.  At the close of the evidence, there was discussion about whether the prosecution could allege a joint enterprise.  Defence counsel complained the prosecution had shifted its case against the appellant.  She claimed, that had the prosecution indicated at the outset its case against the appellant was he committed the offence together with Mok, the defence may have called Mok as a witness.  It is clear from what transpired that this was not an occasion in which the prosecution had shifted its case or taken the defence by surprise.  It was the defence that adduced the evidence of Mok having trafficked in the same batch of drugs that the appellant was alleged to have trafficked, thereby introducing another dimension to the case that the prosecution had to address. 

65.  Defence counsel strongly resisted any attempt by the prosecution to put before the jury for its consideration an allegation of joint enterprise between the appellant and Mok. She argued that both in law and in fact an allegation of joint enterprise was not available to the prosecution.  However, in the course of discussion with the judge, she agreed that the situation would be different if the prosecution limited its case to one of successive possession or joint possession. Prosecuting counsel then agreed to limit his case on this basis.  The consensus was that this would avoid the need for the prosecution to amend the count in the indictment to allege a joint enterprise between the appellant and Mok. 

66.  The defence had adduced evidence before the jury that Mok had admitted to trafficking in the same batch of drugs the appellant was alleged to have trafficked, albeit without mentioning the date on which Mok trafficked in those drugs and the circumstances of the offence.[51]  This evidence was adduced in order for the defence to assert that the drugs belonged to Mok, and that the appellant had nothing to do with them.  But there was also the evidence of the appellant, who testified that he had given Mok a lift in the early hours of the morning on 18 September 2016 so that Mok could collect some money.  He dropped off Mok at the bus stop and was waiting for him to return.  He noticed that Mok had left behind a cigarette packet on the floor of the rear seat, which he placed in the pocket of the door next to his seat.  He was cross-examined as to his relationship with Mok, why he would be giving him a lift in the early hours of the morning to this location, and why would Mok be sitting in the back seat.  There was also the police evidence as to the circumstances of his arrest and the finding of the drugs in the car.  Depending on what evidence the jury accepted or rejected, particularly in relation to the evidence of the appellant, it would appear that there was sufficient evidence on which the jury could find that the appellant and Mok had jointly trafficked the drugs in question. 

67.  However, the complaint by defence counsel that the appellant would be prejudiced if the prosecution were allowed to allege a joint enterprise was, in our view, without foundation.  The defence adduced evidence of Mok’s connection with the same batch of drugs and the prosecution were therefore entitled to fashion its case to address the evidence, as long as it did not result in any unfairness to the appellant.  There was nothing preventing the defence from calling Mok, or seeking to reopen its case to call him, if the appellant felt he had been prejudiced in some way by the prosecution making such an allegation.  There was, of course, a real risk to the appellant that if Mok was called, he would be cross-examined on the basis that he admitted to committing the trafficking offence together with the appellant.  This may explain defence counsel’s tactic to adduce this evidence in its limited particulars by way of a set of admitted facts, rather than calling Mok as a defence witness.

68.  The question then arises as to whether there was an error of law in the way the judge directed the jury by focusing on successive possession or joint possession.  In order to address this question, it is necessary to briefly examine the doctrine of joint enterprise.

69.  In Chan Kam Shing,[52] Ribeiro PJ, with whom the other judges agreed, explained that the common law has developed two forms of joint criminal enterprise which he referred to as the basic and extended forms.[53] He noted that the basic version involves the co-adventurers simply agreeing to carry out and then executing a planned crime.[54]  While the extended version was developed to determine complicity when criminal co-adventurers react to situational uncertainties.[55]  For example, in a murder case involving a gang attack, where there is evidential uncertainty as to who struck the fatal blow.

70.  In his discussion on the doctrine of joint criminal enterprise, Ribeiro PJ made the point that liability of co-adventurers is independently based on each defendant’s participation in a joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question.[56]

71.  In the present case, we are not concerned with the extended version of joint criminal enterprise. Whilst Mok admitted to trafficking in the same batch of drugs as alleged against the appellant, the count before the jury solely focused on whether the appellant unlawfully trafficked in those drugs at the Tai Wo Estate Bus Terminus on 18 September 2016.[57]

72.  In advancing a case alleging joint enterprise, it would be necessary for the prosecution to show that the appellant and Mok each shared a common intention to commit the offence and played their part in it so as to achieve that aim, namely possessing the drugs for the purpose of trafficking.  This was not done because the prosecution did not formally allege that there was a joint enterprise between the appellant and Mok, but rather advanced its case against the appellant on alleging that he trafficked in the drugs either when he was in sole possession or joint possession together with Mok of the drugs.  The prosecution therefore focused on what the appellant had individually done and intended, rather on what he had jointly done and intended with Mok.  There can be more than one perpetrator of an offence and this turns on whether someone contributes to the physical element of the offence by his own independent act accompanied by the requisite mental element.  For example, where two persons assault another person, depending upon the circumstances, they can be charged individually for having separately assaulted the person, or jointly for having assaulted the person together.

73.  The prosecution case that was ultimately presented to the jury for them to consider was whether the appellant carried out the offence himself, in that he possessed the drugs either solely or jointly with Mok, and in either capacity, he possessed them for the purpose of trafficking.  The essence of the concept of possession is that, at the relevant time, a person intentionally has custody or control over the item in question.  A person may have such custody or control alone (sole possession) or jointly with some other person or persons (joint possession). This was all explained by the judge to the jury and he gave illustrations of a person having custody or control over an item in various circumstances.  He referred to the evidence that Mok also possessed the same drugs, and explained that the prosecution case was that the appellant either possessed the drugs after Mok had passed them to him (successive possession) or jointly possessed the drugs with Mok who both could exercise control and custody over them (joint possession).

74.  The issue comes down to whether the jury should have been directed that in order for them to convict the appellant on the basis of joint possession they had to be sure that the appellant and Mok had a common intention to possess the drugs for the purpose of trafficking.  In other words, should the judge have given a direction in accordance with the requirements of an allegation of joint enterprise. 

75.  Mr Cheung accepts in appropriate cases a trial judge has “the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that is open on the indictment and the evidence, and the parties are given an opportunity to address the judge before he takes that course.” [58]  He complains that the appellant was deprived of a fair trial because the unpleaded case of joint enterprise with Mok was allowed to be left to the jury under the label of joint possession.[59]

76.  Mok pleaded guilty to having possessed and trafficked in the same drugs together with the appellant. The jury were not informed of this and the admitted fact was that Mok was “charged with a single count of trafficking in dangerous drugs, which are specified in the indictment of the present case” and he pleaded guilty to the single count.[60]  Adducing this evidence, raised the question whether the appellant trafficked in the drugs when he was in sole possession of them (on a separate subsequent occasion from Mok), or in joint possession of them with Mok, or not in possession of them at all.

77.  The defence did not object to the prosecution proceeding with its case as particularised in the count on the indictment, that is as to whether the appellant possessed and trafficked in the drugs.  It seems that defence counsel for tactical reasons did not want the prosecution to allege a joint enterprise.  The connection of Mok with the same drugs was a matter before the jury that they had to consider.  On this issue, the prosecution submitted that the jury had to consider whether appellant had custody and control of the drugs after or at the same time as Mok.  While the defence submitted that the drugs belonged to Mok and the appellant never had custody or control of them.

78.  We consider that a direction on joint enterprise was not warranted in the circumstances and evolution of this case.  The issue for the jury, which was made plainly to them, was whether the appellant trafficked in the drugs, that he either solely possessed or jointly possessed with Mok.  It follows that the prosecution did not have to amend the count in the indictment to allege a joint enterprise.  We also consider that the appellant was not prejudiced by this approach.  The appellant was put on notice as to the nature of the case that the prosecution were mounting against him in light of the change of evidence.  Furthermore, on behalf of the appellant, this approach was accepted by defence counsel.

79.  In our view, it was available to the prosecution to proceed on the count as particularised, alleging that the appellant was in possession of the drugs for the purpose of trafficking.  The prosecution had limited its case by not alleging that there was a joint enterprise between the appellant and Mok for the purpose of trafficking in the drugs, but rather there was either sole possession by the appellant or joint possession by the appellant and Mok of the drugs.  As long as the jury understood that that was the case they had to consider and that their task was to determine whether or not the appellant possessed the drugs for the purpose of trafficking, in either capacity, then it cannot be said that this resulted in a material irregularity or unfairness to the appellant.  The judge directed the jury along these lines, to which defence counsel had accepted and agreed.[61]

80.  The task of the jury was made abundantly clear to them by counsel in the presentation of their respective cases in their closing speeches and the judge in his summing-up. Once the defence introduced the involvement of Mok in the offence, the task for the jury was to decide whether the appellant possessed the drugs solely or jointly with Mok, and whether the appellant was in possession of the drugs in either of those capacities for the purpose of trafficking. 

81.  We should add that we are of the view that there was evidence to support a case of joint possession. Whilst it primarily came from the appellant’s evidence, it was a matter for the jury as to what they accepted or rejected of his and other evidence. 

82.  We do not agree with Mr Cheung’s submission that the admitted fact of Mok’s guilty plea was ruled admissible for the limited purpose of showing consistency with the defence case, and therefore could only be used for that purpose. 

83.  It appears there was an impasse between the prosecution and defence about the admitted facts proposed by the defence in respect of Mok’s involvement.  It was raised with the judge and, during the course of discussion with counsel, he noted “… the fact that somebody has pleaded guilty in relation to the same quantity of drugs has some relevance here for the limited purpose of showing that somebody has admitted liability for that amount of drugs.”[62] He went on to state that it did not necessarily mean that the defendant was not guilty “for the same quantity of drugs.”  Having heard submissions from counsel on this issue, the judge stated: “I formally rule that the fact that Mok has been convicted of trafficking is relevant in view of the fact that it is the defence case that the drugs actually belong to Mok.”[63]

84.  Whatever the reason for ruling the evidence admissible, once it was admitted into evidence it was before the jury for them to consider together with all the other evidence.

85.  Mr Cheung also complains that the judge should have given the additional directions in respect of joint possession suggested in Li Jin, in which Line J, giving the judgment of the court, stated:

“We would suggest that judges in cases where joint possession is an issue add to the standard directions that ability to control is not the same as exercising control and that proof of the exercise of control requires proof of more than knowledge and acquiescence. In practical terms it must be pointed out that someone in the position of, as in this case, a wife must be proved to have done something to advance or promote or encourage her husband’s possession if she is to be found in joint possession.”[64]

86.  Clearly this and similar decisions are concerned with special circumstances where the allegation of joint possession involves a close or personal relationship between persons that are likely to share or come into contact with each other’s personal items.[65]  This was not the situation in the present case.  Furthermore, the judge in his directions to the jury made it abundantly clear to them that they had to be sure that the appellant had possession of the cigarette packet, in the sense that he had custody or control of the cigarette packet, whether solely or jointly with Mok; that he knew the cigarette packet contained dangerous drugs; and that he possessed the dangerous drugs for the purpose of trafficking.

87.  It is for the foregoing reasons that we do not consider that any prejudice resulted to the appellant by the way the case was presented and summed up to the jury.  It was clear that the jury were being invited to consider whether the appellant in his own right possessed and trafficked in the drugs in question, even if Mok was in joint possession of them at the material time.

88.  This ground of appeal fails.

Ground 2: Alternative verdict of simple possession

Appellant’s submission

89.  The complaint in this ground is that the judge erred in not leaving the alternative verdict of simple possession to the jury, notwithstanding that neither the prosecution nor the defence had asked for it. Mr Cheung referred to the principles in HKSAR v Ho Hoi Shing[66] and HKSAR v Chau Yui Ming,[67] and submitted that the key question was whether there was an obvious alternative verdict which was supported by the evidence, irrespective of what was raised by the parties in their submissions, and even if it was inconsistent with the defence submissions.

90.  Mr Cheung further submitted that, as in HKSAR v Chong Wing Hoi[68] and HKSAR v Chau Peter,[69] when it was determined by the jury that the appellant had been in possession of the drugs, his purpose became not  merely a live issue but an essential one.  He pointed out that whether the jury were sure of the purpose of trafficking based on circumstantial evidence could not be an inevitable conclusion, and a reasonable jury could have arrived at a different conclusion.  He argued that the drugs involved in this case were not so substantial that they must be for trafficking, and the absence of evidence that the appellant was a drug user was a neutral factor.  He further argued that the alternative verdict of simple possession did not need to be based on the defence showing any real likelihood of self-consumption, and in any event the burden was on the prosecution to satisfy the jury that the purpose was for trafficking. 

Respondent’s submission

91.  Mr Wong noted that the defence case was a complete denial of possession of the drugs by the appellant.  There was no evidence before the jury that the drugs were for the appellant’s self-consumption, nor was there evidence that the appellant was a drug user.  Neither counsel had ever suggested that the alternative verdict should be left to the jury.  He pointed out that the present case was similar to Chau Yui Ming, where it was held that the alternative scenario was not obvious because there was no evidence to indicate the drugs involved were for the accused’s own consumption, nor was it a part of the defence case.  

92.  In the circumstances of the case, Mr Wong submitted that the judge was under no obligation to leave the alternative verdict of simple possession to the jury.  

Discussion

93.  The Court of Final Appeal in Chau Yui Ming[70]set out the principles relevant to when a trial judge should direct a jury on an alternative verdict not relied on by the defence.  In that case, Ma CJ, with whom the other judges agreed, explained that the key question was “whether there is an obvious alternative verdict which is supported by the evidence of that alternative.”[71]  He explained that the way the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict.  He added, however, that if a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence this would in most cases be decisive. 

94.  Ma CJ quoted and adopted the observations of Mustill LJ in R v Fairbanks [1986] 1 WLR 1202, who, having stated that a trial judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice, pointed out that such interests will never be served in a situation where the lesser charge simply does not arise on the way in which the case had been presented to the court.  He gave as an example a case where the defence had never sought to deny that the full offence charged had been committed, but challenged that it was committed by the accused.  He made the observation that to leave open the possibility of a lesser verdict in this and other situations would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.[72]

95.  In the present case, the applicant denied that the cigarette packet belonged to him, and in particular he was unaware that it contained drugs.  The applicant presented his case on the basis that the cigarette packet belonged to Mok and that Mok had pleaded guilty to trafficking in the drugs contained in the cigarette packet.  It would have confused the jury and made no sense to them to have put an alternative verdict of simple possession based on the way the defence had dealt with the facts and presented its case on the evidence.

96.  Ma CJ in Chau Yui Ming was critical of attempts after conviction to identify possible alternatives that could be derived from the evidence but which were contrary or inconsistent with the defence run at trial, and in respect of which no directions had been given by the trial judge.  He explained that some care needed to be exercised when defining the obligation to direct alternative verdicts because it could lead to a potential for confusion on the part of the jury.  He said:

“Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to directed jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing up, these allegations bearing little or no resemblance to what was the reality at trial.”[73]

97.  The issue in Chau Yui Ming was whether the trial judge erred in not leaving open to the jury an alternative verdict of simple possession of a dangerous drug where the appellant faced a charge of trafficking of a dangerous drug.  In our overall assessment of the case, as stated by Ma CJ, an alternative of simple possession would have borne little or no resemblance to what was the reality at trial.  We note that in very similar circumstances to the present case, the same complaint was rejected in Chau Yui Ming.

98.  The appellant’s complaint that the judge erred in failing to leave open to the jury the alternative verdict of simple possession is without merit.  No request was made by defence counsel for the judge to give such a direction to the jury, nor did she complain about the terms and scope of the directions given by the judge to the jury.  Quite the contrary, in discussion with the judge she accepted the proposed directions in respect of the element of possession in the trafficking offence.  No request was made for a direction on the alternative verdict of simple possession for the simple reason that it was not consistent with the way the defence case was run by the appellant which was that the drugs belonged to Mok and the appellant had no knowledge of them.

99.  This ground of appeal fails.

Conclusion

100.  It follows from what we have said that we are not satisfied there is any substance to the grounds of appeal that have been advanced before us and accordingly the appellant’s appeal is dismissed. 

[1] McWalters JA.

[2] Appeal Bundle, 116-118.

[3] Appeal Bundle, 10-25. 

[4] Appeal Bundle, 26-33. 

[5] Appeal Bundle, 38. 

[6] Appeal Bundle, 39-75.

[7] Appeal Bundle, 82M-83J.

[8] Appeal Bundle, 85P-S.

[9] Appeal Bundle, 90C-I.

[10] Appeal Bundle, 91B-92C.

[11] Appeal Bundle, 93K-95, the prosecution opening speech to the jury.

[12] Appeal Bundle, 230D-J.

[13] Appeal Bundle, 102F-103E and 103K-Q.

[14] Appeal Bundle, 104D-105G.

[15] Appeal Bundle, 108F-P.

[16] Appeal Bundle, 110D-112C.

[17] Appeal Bundle, 158D-159O.

[18] Appeal Bundle, 160F-N.

[19] Appeal Bundle, 161J-164U.

[20] Appeal Bundle, 166N-167A.

[21] Appeal Bundle, 168E-F.

[22] Appeal Bundle, 169I-U.

[23] Appeal Bundle, 172B-G.

[24] Appeal Bundle, 172T-173C.

[25] Appeal Bundle, 104K-N.

[26] Appeal Bundle, 175A-E.

[27] Appeal Bundle, 178S-179A.

[28] Appeal Bundle, 182K-M.

[29] Appeal Bundle, 185E-G.

[30] Appeal Bundle, 116E-H.

[31] Appeal Bundle, 116I-118C.

[32] Appeal Bundle, 186D-Q.

[33] Appeal Bundle, 187D-188B.

[34] Appeal Bundle, 189J-U.

[35] Appeal Bundle, 190K-191I.

[36] Appeal Bundle, 195N-U.

[37] Appeal Bundle, 204J-207D.

[38] Appeal Bundle, 213P-214I.

[39] Hau Tung Ying and Another v HKSAR (2001) 14 HKCFAR 453, at [46]; Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745, at [9]-[12] and [23].

[40] HKSAR v Li Jin [2010] 4 HKLRD 614.

[41] Unrep., CACC 483/1989, 9 March 1990.

[42] Ibid., at 4.

[43] Appeal Bundle, 207S-T. 

[44] Appeal Bundle, 20C-E.

[45] HKSAR v Li Jin [2010] 4 HKLRD 614.

[46] R v Kousar [2009] 2 Cr App R 5.

[47] R v Jacobs [2002] EWCA Crim 610.

[48] R v Arshad (Tariq) [2002] EWCA Crim 1549.

[49] R v Jacobs [2002] EWCA Crim 610, at [15].

[50] Appeal Bundle, 153E-154Q. 

[51] As a matter of common sense and logic Mok would have trafficked in the same batch of drugs either before the appellant had been apprehended with the drugs found in his car or at the same time.

[52] HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.

[53] It is important to note the distinction between joint criminal liability and accessorial liability.  See at [32]-[39].

[54] At [41].

[55] At [45].

[56] At [33].

[57] Appeal Bundle, 1.

[58] Appellant’s Written Submissions dated 14 August 2020, at [9], quoting the remarks of Chan PJ in Hau Tung Ying and Another v HKSAR (2011) 14 HKCFAR 453, at [46].

[59] Ibid., at [11].

[60] Appeal Bundle, 118, at [9].

[61] Appeal Bundle, 213Q-214I.

[62] Appeal Bundle, 105A-D. 

[63] Appeal Bundle, 108F-J.

[64] HKSAR v Li Jin [2010] 4 HKLRD 614, at [18].

[65] See R v Jacob [2002] EWCA Crim 610; and R v Arshid (Tariq) [2002] EWCA Crim 1549. 

[66] HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 360

[67] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368

[68] HKSAR v Chong Wing Hoi, unrep., CACC 245/2011, 7 May 2013.

[69] HKSAR v Chau Peter, unrep., CACC 398/2009, 12 August 2010.

[70] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368.

[71] Ibid., at [32].

[72] Ibid., at [35].

[73] HKSAR v Chau Yui Ming, at [31].