HKSAR v. LI YIM MING

CACC 546/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 546 OF 2001

(ON APPEAL FROM HCCC NO 56 OF 2001)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

The Charges

1. The applicant, Li Yim-ming appeared before Deputy High Court Judge E. Toh and a jury on 3 charges of trafficking in a dangerous drug. He was convicted of the 1st and 2nd charges but acquitted of the 3rd charge.

2. The subject matters of the 1st and 2nd charges were respectively 16.43 grammes of a mixture containing 16.11 grammes of "ice" and 1,779.59 grammes of a mixture containing 1,731.75 grammes of "ice".

3. The 3rd charge related to 202.25 grammes of cannabis.

The Facts

4. In the early hours on 18 September 2000, a party of police officers saw the applicant outside Flat 29, Rear Block, Rooftop, 8th Floor, Luen On House (the flat), at Nos. 29-31, Luen On Street, Sau Mau Ping, Kowloon (the building) with a man (surnamed Chai) and a woman (Wong). The applicant was arrested together with Chai and Wong as well as two others.

5. The police officers had a search warrant and the flat was searched in the presence of the applicant and the other arrested persons.

6. On top of a bedside cabinet in the bedroom, a blue paper bag and a small box as well as two transparent plastic bags containing "ice" were found. There was also "ice" inside the blue paper bag. That "ice" formed the subject matter of the 1st charge.

7. The cannabis, the subject matter of the 3rd charge was found in the small box.

8. In the bedroom, there was also a TV cabinet with a closable compartment. Inside the compartment, the police found a backpack containing two large bags of "ice", the subject matter of the 2nd charge.

9. Apart from the dangerous drugs, the police also found cash of $1,800 in a drawer of the bedside cabinet. There was a further sum of $50,000 inside the cabinet.

10. On top of the cabinet, there were two electronic scales for weighing dangerous drugs and some adhesive tape. Inside the backpack, a scoop was seized. There were also other paraphernalia such as tin foil, straws and a large number of plastic bags as shown in the photographs.

11. Further search produced a blue notebook and a smaller notebook (P.37 and P.39 respectively).

12. There were no dangerous drugs found on the applicant's person and there was no evidence of his finger- prints being present on the bags containing the dangerous drugs. The flat was rented in the name of the Yue Wai-yan (Ah Kau).

13. When the backpack containing the "ice" was found, the applicant also said: "The ice is not mine."

The Admissions

14. It was the prosecution's case that the applicant made admissions both at the time of his arrest and after he was brought back to the police station. The interview at the police station was video-recorded.

15. The applicant did not challenge the admissibility of his response to the caution and the answers he gave at the video recorded interview.

16. At the time of his arrest and under caution, the applicant denied any knowledge of the "ice" in the backpack and the cannabis. He admitted to have consumed "ice" with Pocari bottles, which were found from the bedroom.

17. The applicant claimed to be a courier in exchange for having "ice" free of charge in the flat. He said he had to help Wah Chai to bring dangerous drugs upstairs and downstairs, as he owed him money after consuming "ice" in the flat and could not afford to pay.

18. At the interview on 19 September 2000, the applicant explained that as a courier, he had to take the "ice" upstairs and downstairs but he did not have to leave the building.

19. The applicant said he worked for Wah Chai in the flat, which was a place for customers to consume "ice". Wah Chai would bring a box of "ice" to the building and the applicant would supply "ice" to individual customers in the flat after they had been weighed and prepared by Wah Chai.

20. The applicant said he did not sleep in the flat but was there almost everyday. On top of the free "ice" he consumed at the flat, he was also paid a regular sum for his service at the flat. When he supplied "ice" to customers, very often Wah Chai was not present.

21. When asked about the "ice" in the blue paper bag, the applicant said he only knew it was "ice" and it was Wah Chai who put it there for sale. He would take packets of drugs to customers and keep a record of the transactions. He denied knowledge of the cannabis. He also said the adhesive tape was used for sealing the bags of ice and that the electronic scale was used to weigh the "ice".

22. According to the applicant, the $1,800 was obtained from customers. When asked about the $50,000, the applicant said: "Should be transaction money for ice that Ah Kau not yet give to Wah Chai."

23. The applicant admitted that customers would be contacted by mobile phones. When customers arrived and waited downstairs, he would take the drugs downstairs to them and receive payments from them. He would then take the money upstairs and put it in the drawer. Wah Chai would pay him his share later. However it was Wah Chai who set the price for the "ice".

24. The applicant also admitted that a lot of customers went up to the flat to consume "ice" and he himself also consumed "ice" in the flat.

25. The applicant said the backpack containing the two large bags of "ice" was brought up to the flat by Wah Chai on 16 September 2001. Wah Chai then passed the backpack to him in the presence of Ah Kau.

26. The applicant said he was curious about the exact quantity of the "ice" as it was so much. He was told the quantity was about 2 kilograms. He also said Wah Chai took 2 ounces and then left.

27. The applicant said when he and Ah Kau became aware that the backpack contained "ice", Ah Kau said he was "afraid of getting busted" and he asked Wah Chai to remove it. The suggestion was that Wah Chai left with the backpack.

28. However on 17 September 2001, Wah Chai returned with the backpack saying it was too heavy. Wah Chai said he would leave it in the flat and would fetch it later. He then squeezed it into the TV cabinet.

29. When the applicant was asked if he knew what it was inside the backpack, he replied: "At the beginning, I knew it was a bag....a bag of 'ice'", "Then, he was told to take it away. After that, he came up again with a knapsack. I did not know that the knapsack contained 'ice'".

30. The applicant said he did not know there was cannabis in the flat and he did not see it.

31. The applicant also admitted that he used the notebook P.39 to record the amounts of drugs and the prices as well as the names of the customers. As for the other notebook P.37, the applicant said it was used for writing and learning of drawing. P.37 contained pages with names and figures on certain dates similar to those in P.39. There was also a long list of names with telephone numbers again similar to pages in P.39.

32. P.37 and P.39 showed a daily turnover of thousands of dollars.

33. There was a close-circuit television installed in the flat. The applicant said Wah Chai gave him money and he asked Ah Kau, the tenant to install the CCTV so as to monitor the customers when they visited the flat.

The Defence Case

34. The applicant elected not to give evidence. He also called no witness to contest the prosecution's allegation against him. In fact the prosecution evidence was not challenged.

The Application

35. In the Notice of Application for leave to appeal dated 6 December 2001, the applicant indicated that he was applying for leave to appeal against conviction (for the 2nd charge only) and he also put forward his homemade grounds of application.

36. In the Perfected Grounds of Appeal filed by the Director of Legal Aid on behalf of the applicant, it was indicated that the application related to all counts of the re-amended indictment.

37. The Perfected Grounds of Appeal were amended on 27 September 2002 in which it was specifically mentioned that the application related to 1st and 2nd counts of the re-amended indictment.

38. Mr. Shiu, for the respondent does not object to the application relating to the 1st charge even if it was out of time and we therefore allow the applicant to proceed with his application for leave to appeal in connection with the 1st charge as well.

The Grounds

39. Mr. Mullick, on behalf of the applicant argues that there was insufficient evidence to show that the applicant was in possession of the "ice" or had control and custody of them.

40. He suggests that the applicant only admitted to be a deliveryman for Wah Chai and he was accountable to him for all money received. The applicant also stated that it was Wah Chai who weighed and prepared the packets of "ice" for the applicant to deliver.

41. It is pointed out that the applicant had denied knowledge of the presence of the dangerous drug in the flat. Therefore his presence together with his admission that he had been inhaling "ice" prior to the entry of the police officers could not establish even a prima facie case against the applicant. In the circumstances, the judge should have ruled that the applicant had no case to answer and directed the jury to acquit the applicant.

42. Mr. Mullick also complains that the judge had failed to give reasons for her ruling that the applicant had a case to answer. He seeks to rely on In re Attorney General's Reference [1988] 1 HKLR 375.

43. In so far as the judge left the case to the jury, she had failed to apply correctly the principles enunciated in Galbraith [1982] 1 WLR 1039 and was thus in error.

Analysis of the Submission

44. We find Mr. Mullick's submission surprising.

45. The applicant was arrested just outside the flat where a large quantity of "ice" was found. The applicant admitted that he was in the flat practically all the time although he did not sleep there.

46. The applicant clearly admitted to have knowledge about the "ice" found in the bedside cabinet, the subject matter of the 1st charge. The suggestion that he denied knowledge of the presence of the "ice" is factually incorrect.

47. In fact he said he would deliver "ice" to customers or arrange them to take "ice" in the flat. He kept records of the amounts of drugs and the prices as well as the names of the customers. He also admitted to have consumed "ice" in the flat. There was also the presence of drug trafficking paraphernalia that the applicant was fully aware of.

48. In the light of such undisputed evidence, the suggestion that there was not even evidence to support a prima facie case on the 1st charge is almost impossible to comprehend.

49. As for the "ice' in the backpack, the subject matter of the 2nd charge, the evidence could lead to the inference that the applicant was aware of its presence and its nature. The backpack was placed inside the TV cabinet, which was unlocked. The applicant admitted that he was aware of its presence. He also said when Wah Chai brought the backpack up on 16 September 2001, he was told it was two kilogrammes of "ice". He also witnessed Wah Chai taking two ounces of "ice" from the backpack.

50. The applicant said Wah Chai took it away when Ah Kau complained. But he was aware that Wah Chai brought it back the next day and squeezed it into the TV cabinet. Wah Chai also said he would fetch it again later in the afternoon.

51. The applicant said he knew the backpack contained a bag of "ice" on 16 September 2001. He tried to suggest that when Wah Chai brought it back the next day, he did not know it contained "ice". He tried to distance himself from the "ice" found inside the backpack by suggesting that the "ice" in the backpack was separate and distinct from those on top of the bedside cabinet.

52. Neither the court nor the jury is bound by the applicant's suggestion that he did not know the backpack contained "ice". The court and the jury could draw such inference as might be reasonable in the circumstances provided that an inference of guilt could be drawn if it was the only reasonable inference to be drawn.

53. The applicant did not give evidence on oath denying knowledge of the presence of the "ice" in the backpack. An accused of course is not obliged to give evidence. But the fact that an accused elects not to give evidence would strengthen the adverse inference that can be drawn against him on the prosecution evidence. (see the judgment of Lord Hoffmann NPJ in Li Defan & Fan Ying Chao v HKSAR FACC No. 5 of 2001 at para. 32.)

54. In deciding if an accused has a case to answer, the judge needs only to decide if the evidence adduced by the prosecution is capable of supporting a guilty verdict on the charge by a jury properly directed.

55. On the evidence, which was not disputed, the jury was entitled to reject what the applicant said in his statement that he did not know the backpack contained "ice". The jury was entitled to infer that the "ice" found on top of the bedside cabinet and those inside the backpack formed a common pool from which the applicant could draw to supply to the customers.

56. The jury was entitled to infer not only that the applicant had knowledge of the presence of the "ice" in the backpack, but that he had control and custody of them and had trafficked in them.

57. It is well established that when the prosecution proves a statement by the accused which contains both incriminating and exculpatory materials and the accused does not give evidence, both the incriminating and the exculpatory materials are evidence to be considered by the jury. In R v Duncan 73 Cr. App. R. 359, Lord Lane CJ said at p. 365:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."

58. In HKSAR v Poon Hoi-wing CACC 313 of 2000, the Court of Appeal followed Duncan (supra) and emphasized the following:

"That does not, however, mean that the two parts [that is the inculpatory and exculpatory parts] must carry the same weight. On the contrary, a tribunal may well take the view that the inculpatory part is more likely to be true and therefore give it great weight, and the exculpatory part, being self-serving, worthy of less, or even little, or even no weight. It is important to appreciate that the exculpatory part is admissible as evidence of its truth not in some vacuum. It is admissible to that end because without it the tribunal of fact is less able fairly to evaluate the facts admitted."

59. The judge clearly was right in ruling that there was a case to answer in respect of both charges.

60. In re Attorney General's Reference (supra), it was held that a High Court Judge is not obliged to give reasons for finding there is no case to answer although it may sometimes be desirable to do so.

61. Roberts CJ (as he then was) said at page 386 of the judgment:

"So far as the High Court is concerned, we accept that Lord Diplock's ruling states the position in law, so that the answer to question 3 is that the judge is under no duty to give reasons for finding that there is no case .

However, we consider that it is, in general, desirable that a judge should give reasons, even though they may be succinct and without detail, as to why he so finds, since there is a legitimate public interest in a judge's reasons for deciding that a prosecution has failed for lack of evidence to support a charge, particularly in a case of this magnitude and notoriety."

62. It must be borne in mind when a judge rules that there is no case to answer, the case finishes and the accused is acquitted.

63. There may be various reasons why the judge rules there is no case to answer. May be the charge is bad or otherwise wrongly worded; may be the evidence does not support the charge; may be the evidence of the prosecution witnesses has been so discredited and/or otherwise demonstrated to be so unreliable that no reasonable jury can act upon it; may be the judge forms the view that the accused cannot receive a fair trial.

64. In such circumstances, as Roberts CJ held "there is a legitimate public interest in a judge's reasons...., particularly in a case of this magnitude and notoriety."

65. The situation is quite different when a judge rules that there is a case to answer. The case is not finished but will be left for the jury to decide if the charge against the accused is proved beyond reasonable doubt.

66. To rule that there is a case to answer, the judge only needs to be satisfied, at the conclusion of the prosecution case, that there is sufficient evidence upon which the accused could lawfully be convicted.

67. It is a question of law and it is neither necessary nor desirable to insist that a judge must state the obvious every time he rules a case to answer.

68. Mr. Mullick also complains about part of the judge's summing up in the following terms:

"In other words, if you find that Wah Chai and Yue Wai-yan (Ah Kau) may be in possession of these drugs at the same time, you may find that the defendant is also in possession, provided that you are satisfied on the totality of the evidence that the defendant had custody and control within the meaning that I have just told you. So all three could be enjoying possession of the dangerous drugs.)

69. Mr. Mullick suggests that such summing up was confusing and could lead the jury into error in that it was capable of implying that possession could be attributed to the applicant simply by his alleged association with the other two persons mentioned and that it would be sufficient to attribute 'possession' to the applicant if 'at the same time' the other persons 'may be in possession of these drugs."

70. With respect, the summing up by the judge could not have the effect as Mr. Mullick suggests at all. The "ice" in question could of course be in the joint possession of the applicant and others. The court was not concerned with the others. The court was only concerned with whether the applicant had knowledge of the existence of the "ice" found inside the flat and whether he had control and custody of it.

71. In our view, the judge had put the issues fairly and properly before the jury. Her summing up to the jury cannot be faulted. Ultimately it was a question for the jury to decide.

72. On the evidence, it was open to the jury to infer that the applicant had knowledge of the "ice", the subject matter of both charges. The jury was entitled to infer that the applicant did have control and custody of those quantities of "ice" and that the applicant trafficked in them.

73. The jury was perfectly entitled to convict the applicant on both charges. On the undisputed evidence, the conclusion of the jury was by no means surprising. We have no lurking doubt about the conviction.

74. In our view, the applicant has no valid complaint with his conviction on either of these charges.

Conclusion

75. There is no merit in any of the grounds advanced by Mr. Mullick on behalf of the applicant.

76. The application for leave to appeal against conviction in respect of both charges is dismissed.