HKSAR v. YIP CHOR KWAN

CACC 202/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 202 OF 2016

(ON APPEAL FROM DCCC NO 100 OF 2016)

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J U D G M E N T

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1.  The applicant, who was the 2^nd defendant at trial, was convicted after trial before HH Judge Woodcock (“the judge”) on 24 June 2016 of one charge of Trafficking in dangerous drugs (1^st Charge), namely, 18.41 grammes of a powder containing 14.42 grammes of ketamine, 3.22 grammes of a crystalline solid containing 3.15 grammes of methamphetamine hydrochloride (‘Ice’) and 1.17 grammes of a solid containing 0.88 gramme of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; and one charge of Possession of apparatus fit and intended for the inhalation of dangerous drugs (2^nd Charge), contrary to section 36(1) and (2) of the same Ordinance. The judge sentenced her to 4 years and 6 months’ imprisonment on the same day.

2.  The applicant initially sought leave to appeal against both conviction and sentence.  During her submissions, she applied for an adjournment of this hearing so that her case might be considered by the Hong Kong Bar Association Free Legal Service Scheme, to which she made an approach earlier this month.  Having heard arguments from both sides, I refused the application for an adjournment of this matter.

3.  The applicant was convicted of the charges on 24 June 2016 and sentenced the same day.  Her application for legal aid to pursue her appeal against sentence was made on 7 July 2016 within the statutory time limit, but refused by the Director of Legal Aid on 9 August 2016.  Nine days after that refusal, on 18 August 2016, the applicant decided to make an application for legal aid to pursue an appeal against conviction.  By then, of course, she was outside the statutory time limit for giving notice of her intention to appeal against conviction by about 4 weeks.  That application for legal aid was similarly refused on 11 October 2016.  Only this month has she taken any steps to approach the Hong Kong Bar Association Free Legal Service Scheme.

4.  Although Mr Ira Lui, for the respondent, took no issue with the notice of application for leave to appeal against conviction being made out of time in respect of her substantive application for leave to appeal, he did rely on it as evidence of the applicant’s lack of urgency in promoting her appeal, and objected to the adjournment.

5.  In my judgment, the applicant has had more than enough time since her conviction and sentence 9 months ago to secure representation and it is not in anybody’s interests, including her own, to delay this hearing further.  For these reasons, the application for an adjournment was refused.

6.  The applicant further indicated that she did not intend to pursue her appeal against sentence.  Accordingly, her application for leave to appeal against sentence was refused and formally dismissed by me in open court.

The trial

The prosecution case

7.  The applicant was originally charged with the 1^st defendant (“D1”) on the same charge sheet in respect of both offences.  However, D1 pleaded guilty to both charges and was then called by the prosecution to give evidence against the applicant as an accomplice witness.  It was the prosecution case that the applicant had asked D1 to carry the drugs, deliver part of them to others and keep the remainder for himself as a reward.  The retail value of the drugs was HK$4,512.  D1 was one of the two prosecution witnesses in the case, the other being PC 13989 (“PW1”), the arresting officer of D1.

8.  The facts were that, on 5 November 2015 at around 13:08 hours, the applicant and D1 left Room 1941 of the Harbour Plaza 8 Degrees Hotel in To Kwa Wan, Kowloon (“the hotel room”), which she had rented two days earlier.  Initially, D1 was carrying the applicant’s handbag as they left the hotel room and proceeded along the corridor to the lift, while the applicant was carrying two paper bags and a plastic bag.  When they were descending in the lift, the applicant gave D1 one of two paper bags she was holding and, on their arrival at the ground floor lift lobby, she gave him the other paper bag.  At about 13:30 hours, D1 was stopped outside the hotel by police officers, including PW1, who were mounting an anti-narcotic operation at a location opposite the said hotel[1].

9.  At D1’s request, the officers conducted a search on him in a rear lane rather than the street.  In one of the paper bags (Exhibit P34) he was holding, the officers found the drugs, the subject matter of the 1^st Charge, together with one plastic container, one inhaling device and one glass container, fit and intended for the inhalation of ‘Ice’ and cocaine, the subject matter of the 2^nd Charge.  They further discovered an electronic scale and a transparent plastic box containing 46 empty re-sealable plastic bags.  The drugs were contained in eight plastic bags and a packet folded from a HK$100 banknote.  Three mobile telephones were found in the handbag.  HK$1,423.4 and another telephone were found on D1.

10.  D1 was arrested at 13:40 hours.  Under caution, he denied ownership of the drugs and the inhaling apparatus, but told PW1 that they belonged to his friend “Ah Kwan” (the applicant).  A video-recorded interview of D1 was subsequently conducted at Kowloon City Police Station, and D1’s home searched.

11.  CCTV footage of the said hotel, which captured the interaction between the applicant and the D1, was retrieved and admitted into evidence by consent[2].

12.  D1 provided information to the police, which led to the subsequent arrest of the applicant on 23 November 2015.  Under caution, the applicant denied knowledge of the drugs or any item in the paper bags. Further, she said that she did not recognise the woman in the CCTV images.

13.  D1 gave evidence at the applicant’s trial that he had known the applicant for a few years and they had become flatmates in May 2015.  At about midnight on 4 November 2015, the applicant called his mobile telephone and told him to meet her at the hotel room.  When he arrived, D1 saw drugs on the applicant’s bedside table.  There were about 30 packets of ketamine, of which one was bigger than the rest, 10 bags of cocaine, and 4 to 5 bags of ‘Ice’; he knew what they were because he was a habitual drug user himself.

14.  He saw that there were also two ‘bongs’ or pipes on the bedside table, which he then used to inhale ‘Ice’.  The applicant gave him some drugs to take and she also consumed drugs with him.  They chatted until 4 or 5 am and then he left the hotel room.

15.  He returned to the hotel at about midday on the same day, when the applicant called and asked him to collect her.  When he arrived at the hotel room, he found that there were less drugs than before.  The bigger bag of ketamine was still there, but with less than 10 smaller bags. There were also 3 to 4 bags of cocaine and 2 to 3 bags of ‘Ice’ remaining.  The two of them then both took drugs again, after which the applicant said that she needed to check out of the hotel room.  She then asked D1 if he would help her to deliver some ketamine to someone.  He could keep the ‘Ice’ and cocaine in return.  The applicant said she would come with him, but D1 was to carry the drugs and hand over the ketamine.  D1 agreed and they both left the hotel room.

16.  D1 said that he was only carrying the applicant’s handbag at the stage they left the hotel room.  However, by the time they had both reached the hotel lobby, she had also handed over the paper bags and a plastic bag for him to carry.  D1 left the hotel to get a taxi, while the applicant checked out.  However, when D1 crossed the road outside the hotel, he was intercepted by police and subsequently arrested.

17.  D1 confirmed that the CCTV footage of the 19^th floor corridor, the lift and the lift lobby of the hotel all depicted himself and the applicant. The CCTV in fact showed the applicant handing one of the paper bags to D1 inside the lift, and then giving him the other paper bag outside the lift in the lobby.  It is not apparent from the CCTV recordings whether she also gave him the plastic bag, but nothing hangs on this detail.

18.  During cross examination, D1 agreed that he had earlier been arrested on 3 November 2015 together with another person following a search of his home, where drugs were found.  However, neither he nor the other person were ever charged with possession of the drugs found in his home.  He denied giving false evidence against the applicant in exchange for not being charged in respect of a possible offence arising out of this search.  He also refuted the suggestion that he had framed up the applicant in order to get a shorter sentence.  He admitted that he was not telling the whole story when he made his first statement under caution to the police.

19.  D1 further disagreed that he had met two other girls inside the hotel room and that he was on his way to his friend’s car when he was intercepted.  He did state in his video-recorded interview that there were two friends also present inside the hotel room, but he maintained in evidence that that was not in fact true.

20.  It was an admitted fact that neither the applicant’s fingerprints nor her DNA were found on the exhibits seized.

Defence case

21.  The applicant elected to give evidence.  In short, the applicant denied knowledge of the drugs and apparatus cited in the charges.  She did agree that D1 was holding her handbag.  She also admitted at trial that she was the female in the CCTV recordings who had handed over the two paper bags to D1.

22.  She explained that she rented the hotel room because she had gone to that part of Kowloon to see her friends and not because of the police search of her and D1’s home.  She admitted inviting D1 to the room after he had been released from police custody on 4 November 2015. However, he had called her rather than she had called him.  She denied seeing any dangerous drugs in the hotel room.  She maintained that D1 had led two friends, whom she did not know, to the hotel room on 5 November 2017.  She understood that one of them had a car, and that they were to drive the applicant and D1 home that day.

23.  On being telephoned by the hotel front desk to vacate the hotel room, it being past the midday check-out time, the applicant said that she packed things up hurriedly and grabbed her handbag as well as two paper bags, without examining their contents.  The paper bags did not belong to her, and she subsequently handed them to D1, together with her handbag.  She suspected that one of D1’s friends had left the bags in the hotel room.

24.  During cross-examination, she agreed that D1 had taken drugs inside the hotel room, but the drugs were not hers and she did not know where they had come from.  She also denied possession of the toiletries and the pair of pink shorts found in one of the paper bags.

Reasons for verdict

25.  The judge acknowledged that the central issue in the case was the credibility of witnesses, in particular the credibility of D1. She reminded herself of the inherent dangers of accomplice evidence, and bore specifically in mind D1’s previous convictions and the sentencing discount he stood to gain by testifying against the applicant.  Accordingly, she looked for supporting evidence of his account.  She found that the CCTV footage provided support for his claim that he was asked by the applicant to carry the drugs out of the hotel and deliver the ketamine component to somebody else.

26.  The judge found the applicant’s evidence unreliable and incredible.  She analysed the explanation given by the applicant concerning the paper bags as follows:

“I am sure this evidence was an attempt to distance herself from the bags and the items inside them. As she is seen clearly on the CCTV footage holding them, she had to explain under what circumstances she had them in her arms. Moreover, there were items in them consistent with a stay in a hotel; items for personal hygiene, clothing and snacks. She is the only person who stayed there. I am sure they were her bags and her belongings.

To support this finding, I find it very hard to believe someone would leave in her room drugs worth several thousand dollars as well as paraphernalia associated with taking and packing drugs such as “Ice”, pipes or bongs, straws, empty re-sealable plastic bag, lighters and a scale. It is inherently improbable these items and drugs would be left alone by their owner to chance.

I have considered the admitted facts, the 2^nd defendant’s fingerprints were not found on the exhibit that were examined, nor was any DNA. However, that is not fatal to the prosecution’s case.”[3]

27.  The judge did not accept the applicant’s evidence that she had no idea how D1 took the drugs, or where they had come from: she was sure that he obtained the drugs and the inhaling devices from the applicant inside the hotel room:

“I am sure the 1^st defendant as a drug user did take drugs as he said in the 2^nd defendant’s hotel room. I am sure he did not take drugs there nor any apparatus to inhale drugs having just been bailed out and released from a police station. I am sure, as he said, he got the drugs from the 2^nd defendant and used pipes already in the room. Even the 2^nd defendant said he came empty-handed except for his mobile phone.”[4]

28.  She was also satisfied that D1’s receipt of the paper bag containing the drugs from the applicant was supported by the CCTV recordings:

“The CCTV footage does support his evidence that he was to take the drugs out of the hotel and to somebody else. It can be seen that the 2^nd defendant carried the bags initially but passed them all to the 1^st defendant before they entered the main hotel lobby.”[5]

29.  Concerning the discrepancies between D1’s evidence at trial and his answers during his video-recorded interview, the judge held that there were no material lies; rather, he had not told the police the whole truth.  She found that D1 had agreed to deliver the drugs because the applicant offered him the remaining drugs as a reward.

30.  The judge found that the applicant had lied about her complete lack of knowledge of the contents of the paper bags.  By contrast, she found D1’s evidence to be credible and reliable.  She was sure the applicant was trafficking jointly in the drugs found in the paper bag being carried by D1.

The applicant’s submissions

31.  The applicant’s complaints centre on the judge’s acceptance of D1’s evidence.  She argues that the CCTV footage demonstrated that other people visited the hotel room during the course of her stay and reiterates that the paper bags and their contents were nothing to do with her. She also complains that it was not until shortly before her trial that she knew D1 was to be called as a witness against her, which was unfair to her.

The respondent’s submissions

32.  Mr Ira Lui, SPP, submits that the judge had analysed the issue of credibility extensively, and had repeatedly warned herself of the dangers of relying on the evidence of an accomplice witness.  He contended that the findings of fact arrived at by the judge were unassailable.

33.  As for the suggestion that CCTV footage might have supported her assertion that she was visited by other people than D1 during her stay in the hotel room, none was produced at trial to show any such thing.  In any event, D1 had said that at the times he was there with the applicant, there was no one else inside with hotel room.

34.  Concerning the applicant’s contention that she became aware of the fact that D1 had become a prosecution witness only shortly before the trial, Mr Lui submitted that D1’s statements had been served on the defence more than a week before the commencement of the trial.  As it was, the applicant did not appear on the first day of trial, as a result of which her bail was revoked and the trial commenced the following day.  At no stage did her counsel, who was a very experienced criminal practitioner, say that he was in any way disadvantaged by the late service of any statement, nor did he apply for an adjournment.

Consideration

35.  As the judge correctly said, the case depended upon her assessment of the credibility of D1 in particular.  Acknowledging his weaknesses as a witness, since he was a drug addict with a criminal record, as well as someone with something to gain from giving evidence against the applicant, the judge said she would look for supporting evidence of D1’s account.

36.  She found that support in the CCTV footage, which established that the applicant had originally held the two paper bags before successively passing each one to D1 in the lift and the lift lobby. Furthermore, the paper bag with the drugs and paraphernalia also contained personal items that were only consistent with someone who had been staying in the hotel; namely, toiletries, clothing and snacks.  Since the applicant was the one who had rented the room, the personal items must have been hers.

37.  I have been shown the relevant excerpts from the CCTV recordings, which were played during the hearing before me.  They are of sufficient clarity to see the handing over of the paper bags by the applicant to D1 at two different stages, and his holding of her handbag.  It seems to me that the judge was correct in finding that these pieces of evidence supported D1’s account.

38.  They perhaps achieved an even greater significance when the applicant had, in her record of interview, initially refused to confirm that she was the person shown in the CCTV footage[6] and, further, claimed in evidence to have no idea whose personal items were in the paper bags that she was initially shown to be carrying.

39.  I can at this stage see no reasonably arguable grounds of appeal arising from the judge’s evaluation of D1’s evidence.  Nor can I accept that there is any basis for finding that the defence were in any way handicapped by D1 being called as a prosecution witness.  Certainly, the applicant’s experienced counsel never suggested that such a development had caused him any difficulties, nor did he seek an adjournment to be in a better position to deal with it.

40.  In respect of the applicant’s evidence, the judge also gave considered reasons why she rejected her account.  In particular, she simply did not accept that the drugs belonged to anyone other than the applicant herself, or that they would have been inadvertently left behind in the hotel room without the applicant’s knowledge, only to be scooped by her up in her rush to vacate the room.  Furthermore, the personal items in the paper bags were consistent with belonging to someone who had stayed in the hotel: that was the applicant.

41.  I can at this stage see no reasonably arguable grounds of appeal arising from the way the judge has evaluated the applicant’s evidence and decided to reject it.  The judge had the advantage of seeing and hearing the witnesses and the applicant has the difficult burden of showing either that the judge has misunderstood or misapplied the evidence or that no reasonable tribunal, properly applying itself to that evidence, could have come to the decision it did.

42.  For the sake of completeness, I should say that I was initially concerned at the admissibility of D1’s answer to caution when arrested, in the absence of the applicant, to the effect that the drugs and inhaling devices belonged to the applicant[7]. However, this evidence appears to have been given by PW1 in evidence in chief, without demur from defence counsel, the general thrust of whose cross-examination of D1 was to be that he had given different answers at different stages of the police investigation and was, therefore, an unreliable witness.  Reading the judge’s Reasons for Verdict carefully and as a whole, she appears only to have relied on the witness’s initial answer to caution as evidence of the consistency and reliability of D1, who had “maintained this stance throughout his interview and beyond”[8], in circumstances where his consistency and reliability were being impugned.

Conclusion

43.  The application is accordingly refused.  The applicant is advised that she has the right to renew her application for leave to appeal against conviction to the full Court of Appeal, but she is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of her application.