HKSAR v. WONG CHUN WAH

CACC 74/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 74 OF 2012

(ON APPEAL FROM HCCC 353 OF 2011)

____________

BETWEEN

____________

____________________________

REASONS FOR JUDGMENT

____________________________

Hon Lunn JA (giving the reasons for judgment of the court) :

1.  The applicant sought leave to appeal against his conviction on 1 February 2012 after trial before McWalters J and a jury of a single charge of unlawfully trafficking in a dangerous drug, namely 426.36 grammes of cocaine hydrochloride, 42.22 grammes of cocaine and 820.28 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. At the hearing, we dismissed the application and said that we would give our reasons in due course. This we do now.

THE TRIAL

2.  The applicant was arrested by police officers inside domestic premises at Room C, on the 2^nd floor of Lung Hong House, 267 Lai Chi Kok Road in Sham Shui Po.  There was no dispute that the dangerous drugs, the subject of the charge, were found both in the premises and from a canopy outside the premises, that the premises had been used for packaging dangerous drugs and the paraphernalia used in the preparation and packaging of dangerous drugs was present in and outside the window of the flat.  The applicant testified that he was on the premises merely to consume ketamine.  At issue was whether or not the applicant was a party to unlawfully trafficking in those dangerous drugs.

The prosecution case

3.  It was the prosecution case that, in response to police officers banging on the door and demanding that they be permitted to enter the premises, a person was seen dropping paraphernalia used in the preparation and packaging of dangerous drugs and placing a black Levi bag outside the window of the premises.  Since the applicant was the only person in the premises, it was the prosecution case that was done by the applicant.  A red cashbox and three plastic bags, found inside the black Levi bag, were all found to contain dangerous drugs.  The applicant’s fingerprint was found on one of those plastic bags, which bore the name of the Yue Wah Chinese Products Department Store.  The prosecution suggested that his fingerprint came to be on the bag as he had collected various packages of dangerous drugs, which he then placed in the Levi bag and threw out of the window, before the police succeeded in gaining entry into the premises.  That bag contained 236.90 grammes of cocaine hydrochloride.

4.  When police officers entered the premises the applicant resisted arrest and tried to escape.  Packages of dangerous drugs and related paraphernalia for the preparation and packaging of dangerous drugs were found scattered around openly on a table in the premises.  It was the prosecution case that it would have been evident immediately to anyone entering the premises that the premises were being used for the preparation and packaging of dangerous drugs.  A folded piece of paper found on the table was found to contain traces of cocaine and the applicant’s fingerprint.

5.  In all there were 18 plastic and paper bags containing dangerous drugs, the market value of which was over $600,000.

The defence case

6.  The applicant testified in the defence case, saying that he was merely a visitor to the premises, having entered the premises earlier with Mak Wai Tsuen and Ho Jun Lun just after 8:00 p.m.  He went there to consume ketamine.  Mak had used a key so that they could gain entry to the premises.  Then, Mak had poured out some ketamine from a plastic bag, which the applicant had consumed by sniffing.  He had used a folded piece of paper to do so.  In cross-examination he said that he had unfolded all 3 folded pieces of paper on the table to determine whether or not there were dangerous drugs inside.  That explained the presence of his fingerprints on a piece of paper found on the table.  He was unaware that the premises were being used for the preparation and packaging of dangerous drugs.  There were no obvious signs of significant quantities of dangerous drugs or paraphernalia for the preparation and packaging of those drugs.  That was true of the previous occasions on which he had visited the premises.

7.  Ho left the premises first, soon after their entry into the premises.  After they had watched a movie together, Mak left the premises after 10:00 p.m.  Shortly afterwards the police entered the premises unannounced, whilst he was watching his computer with all the lights turned off.  Having been pushed against the wall and handcuffed he was pushed onto the bed, in which position he was struck multiple blows to his chest.  He was unable to see what was going on within the premises.  The applicant denied resisting arrest or having made any attempt to flee the premises.

8.  In due course, he became aware that the police were in possession of the black Levi bag.  He was unable to assist them to open the red cashbox.  He had not thrown paraphernalia for the preparation and packaging of dangerous drugs out the window of the premises nor had he placed the black Levi bag through the window onto the canopy.  Although the applicant said that he was unable to explain why it was that his fingerprint was found on the plastic bag on which was printed the name Yue Hua, which had been found in the black Levi bag, the applicant did say that previously it had contained discs.  The paraphernalia for the preparation and packaging of dangerous drugs displayed on the table in the photographs admitted into evidence trial had not been so displayed prior to the arrival of the police, who had staged those photographs.

9.  It was an admitted fact that the tenant of the premises had left Hong Kong for the Mainland on the morning of 30 March 2011.  He was wanted by the prosecution as a suspect in respect of the events that led to the prosecution of the applicant and had failed to answer bail in two other cases of unlawful possession of a dangerous drug.

Grounds of appeal against conviction

10.  Mr. Wong Man Kit SC advanced two primary grounds of appeal against conviction on behalf of the applicant.  Firstly, he submitted that the judge had erred in failing to direct the jury that, even if they were satisfied that the applicant had thrown dangerous drugs out of the window of the premises in the face of the arrival of the police party, they must not consider that as evidence of his guilt of the offence of unlawfully trafficking in dangerous drugs, given that the applicant accepted that he was on the premises to consume dangerous drugs unlawfully.  Accordingly, in removing the dangerous drugs and the paraphernalia for the preparation and packaging of dangerous drugs from the premises the applicant might have acted as he did in fear that he might be arrested for consuming dangerous drugs or that mistakenly it might be thought that he was in possession of all the dangerous drugs in the premises.  He invited the court to note that it was prosecution case that the applicant’s fingerprint came to be on the Yue Hua bag in the course of the applicant gathering together the dangerous drugs into the Levi bag for the purpose of throwing them out of the window.  The effect of that error by the judge was compounded by the fact that, in its closing speech, the prosecution had relied on that conduct as evidence of the applicant’s guilt in respect of the offence of unlawfully trafficking in a dangerous drug.

11.  Secondly, Mr. Wong contended that the judge erred in failing to direct the jury not to draw any adverse inference from the evidence led at the trial that, having been arrested for the offence of unlawfully trafficking in a dangerous drug, and after the words of caution had been administered, the applicant had remained silent.  Further, the judge had failed to give such a direction in respect of the evidence elicited in cross-examination of the applicant that, although he testified that he had been assaulted on two occasions by the police whilst on the premises, he had not lodged a complaint to the Duty Officer at Sham Shui Po Police Station, to which police station he was taken after his arrest.

A consideration of the submissions

12.  In his summing up the judge reminded the jury of how the prosecution put its case (appeal bundle, page 27 B - I):

“ …the prosecution says that there is evidence that the defendant was found on the premises surrounded by drugs and all the paraphernalia for packaging and distributing them. The prosecution says that the defendant tried to dispose of the drugs so the police would not discover them, that he tried to escape from the police and that his fingerprints were found on items in the unit which links him to the drugs and the packaging of them. The prosecution says that the only reasonable inference to draw from all these facts is that the defendant was trafficking in these drugs either by supplying the drugs or dealing in or with the drugs, or was in possession of drugs for either of these purposes of supplying or dealing in or with them.”

13.  Subsequently, the judge indicated to the jury that he was going to approach the evidence of the prosecution under three separate headings (appeal bundle, page 28 P - T):

(i) the presence of the applicant in the premises;

(ii) the contents of the premises and the fingerprint evidence that links the applicant to those contents; and

(iii) the conduct of the applicant on becoming aware of the presence of the police.

Clearly, the judge was inviting the jury to have regard to all of the evidence in determining what inferences they could properly draw.  He went on to remind the jury that the applicant had been found alone on the premises in which there were dangerous drugs with a retail value of over $600,000.

14.  Of the prosecution case in respect of the applicant’s conduct on being confronted by the police, the judge invited the jury to have regard to the evidence of the disposal of items from the premises out of the window and to the police officers’ evidence of the applicant’s attempts to resist arrest and to escape (appeal bundle, page 32 Q - 33 G).  Of the former, the judge said that the prosecution contended that what the applicant :

“ …was trying to do by these actions was to conceal the dangerous drugs and the other incriminating items.”

15.  Of the evidence that the applicant had resisted arrest and tried to escape, the judge said that the prosecution contended “...that this conduct by the defendant is an indication of his guilt”. In respect of that issue, the judge went on to give the jury the standard direction in respect of flight, namely that even if they accepted the prosecution evidence as to flight, they were to consider whether there was an ‘innocent explanation’ for his conduct.  In that regard, the judge reminded the jury that in his own testimony the applicant had accepted that he had consumed ketamine whilst on the premises.  Of that evidence, he said:

“ …so if you conclude he was trying to escape would be doing so simply because he was there consuming drugs and he wanted to avoid the police, as opposed to being involved in the trafficking of drugs. I am going to refer to this as an innocent explanation…”

16.  The judge went on to say:

“ So even if you said to yourselves, ‘Well, we do not think it was for that reason’, you would have to consider could there be any other equally innocent reason, a reason other than his participation in the trafficking of drugs which might explain why he was trying to escape……if you are sure that there is no innocent reason to explain why he was trying to escape, then and only then can you regard his actions as evidence which support prosecution case.”

17.  In effect, the complaint made on behalf of the applicant is that the judge did not give a similar direction specifically in respect of the issue of the inferences that might properly be drawn, if they accepted the prosecution case that the applicant had thrown dangerous drugs and the paraphernalia for the preparation and packaging of dangerous drugs out of the premises.  The judge was not required to give such a specific direction.

18.   Earlier in the summing up the judge had directed the jury correctly in respect of the drawing of inferences (appeal bundle, page 26 L):

“ ... if you find certain facts proven you are entitled to infer the existence of other facts but you may only do so if the inference is the only reasonable inference to draw from the proven facts. So if from a set of facts that you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference because there is already a competing reasonable inference that is favourable to him.”

19.  It is to be remembered that the applicant’s testimony at trial was that there were no circumstances, apparent to him whilst he was in the premises, that the premises were being used as a place in which to prepare and package dangerous drugs.  He was not aware of the presence of significant quantities of dangerous drugs.  Further, he denied throwing anything out of the windows, let alone dangerous drugs or the paraphernalia for preparing and packaging dangerous drugs.  There was no evidence that in panic, lest he be mistakenly accused of unlawfully trafficking in the whole amount of drugs in the premises, the applicant had thrown the dangerous drugs and paraphernalia for the preparation and packaging of dangerous drugs out the window of the premises.  That was not suggested on his behalf in counsel’s closing speech.  There is no merit in this ground of appeal.

Ground 2 : the applicant’s silence in the face of arrest and caution; his failure to complain of assaults by the police

20.  Although the prosecution led evidence that, on being arrested and cautioned in respect of the offence of unlawful trafficking in a dangerous drug the applicant had remained silent, neither counsel nor the judge referred to that evidence in their respective speeches or summing up.

21.  In the evidence-in-chief of DSPC 19931 the following evidence was elicited (appeal bundle, page 59 A - D):

“ Q. Now, when you placed the defendant under arrest for trafficking dangerous drugs did you caution him?

A. Yes.

Q. And does that mean you told him he wasn’t obliged to say anything, etc?

A. Yes.

Q. And did he make any reply?

A. No.”

22.  Although the jury was not told all of the words of the caution administered to the applicant on his arrest, it was made perfectly clear to them from the evidence itself that the applicant was not obliged to say anything whatsoever.  No one at trial ever suggested otherwise.  However, the evidence having been led, it would have been better if the judge had reminded the jury, that they were to draw no inference adverse to the applicant from his silence, that being merely the exercise of his right as he had been reminded by the police officer.  Nevertheless, in all the circumstances we are satisfied that the failure to give such a direction was not material.

23.  In his evidence-in-chief, the applicant had testified of having been assaulted by police officers by blows to his chest and having been slapped on the face, whilst he was in the premises in which he had been arrested.  In cross-examination by counsel for the prosecution, the applicant accepted that, although he had been interviewed by the Duty Officer at Sham Shui Po Police Station in the early hours of 30 March 2011, he had not made any complaint of those assaults to that officer.  Further, he had never made any formal complaint about the matter, although he had raised the matter with a solicitor who visited him in the early hours of the morning.  Apparently by way of explanation for not lodging any complaint, the applicant said that he had not sustained any injuries.

24.  It is to be noted that in its closing speech the prosecution did not advert to the applicant’s evidence of having been assaulted by the arresting police officers or of the absence of any complaint of assault by the applicant.  Not surprisingly, in those circumstances counsel for the applicant did not address the matter of the failure to lodge a complaint.  In his summing up the judge, having referred to the applicant’s evidence in respect of the assault upon him by police officers, adverted to the evidence of the absence of any formal complaint only briefly and without any comment.  Of the applicant, he said (appeal bundle, page 36 T - 37 A):

“ He….. agrees that he made no complaint to the police Duty Officer at Sham Shui Po Police Station of the assault on him by the arresting officers.”

25.  In all the circumstances, it is apparent that the absence of any formal complaint by the applicant of having been assaulted by the arresting police officers was treated by both parties and the judge as being of very little or no consequence in respect of the real issues that the jury was required to address.

26.  That factual position is very different from the facts obtaining in the authority upon which Mr. Wong relies, namely Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600.  In that case, the applicant had been arrested in his motor car and found in possession of heroin. At trial, and for the first time, the applicant said that he had lent his car earlier to another person, Tsang Kai, who had returned it to him earlier on the day of his arrest.  Tsang Kai had been in the car until shortly before the time of his arrest.  It was the applicant’s case that the heroin had been left in the car by Tsang Kai.

27.  In the course of the applicant’s testimony, the judge had questioned him closely as to why it was that the existence of Tsang Kai had only been raised at trial and not mentioned earlier to the police.  After he had received the submissions of counsel, the judge had directed the jury to ignore that evidence.  Nevertheless, the Court of Final Appeal determined that, in the absence of an explanation to the jury as to why that was being done, the adverse consequences of the receipt of inadmissible evidence was not cured. In the judgment of the court, Mortimer NPJ said of the questions and answers (page 622 I - J, paragraph 58):

“ They invited the jury to form an adverse inference against the accused because he had not disclosed his defence earlier to the police. They raised inferences not only of guilt but also that the defence lacked credibility. It was a serious breach of the accused’s right to silence and to a fair trial according to law.”

28.  Of the failure of the judge to direct the jury properly, Mortimer NPJ said (page 623 C - D, paragraph 61):

“ Here the judge chose to simply direct the jury to forget and ignore the inadmissible evidence. But, without some explanation that the appellant was under no obligation of any kind to say anything to the police and therefore the suggestion that he ought to have informed them of Tsang Kei was both wrong and wholly unfair, the jury would have had difficulty in putting the point, and its effect on the appellant’s credibility, out of mind.”

29.  Whilst the existence and role of Tsang Kai was the very core of the defence of the applicant in that case, in the instant case the applicant’s testimony that the arresting police officers had assaulted him was not central in any way to his defence.  His acceptance that he had failed to lodge a complaint of those assaults was irrelevant to the issue of his guilt of the offence charged.  At most, it was possibly relevant in an insignificant way to the issue of his credibility.  But even in that regard the applicant had given in testimony a plausible explanation for failing to lodge a complaint, namely that he had sustained no injuries to support such a complaint.  As noted earlier, the prosecution had not even bothered to refer to the evidence in its closing speech.  There is no merit in this ground of appeal.

Conclusion

30.  For the reasons that we have given, the application for leave to appeal against conviction was dismissed.

Costs

31.  We made an order nisi that the applicant pay the respondent’s costs of the application for leave to appeal against conviction to be taxed if not agreed and indicated that, if they wished, the parties may make written submissions, having had the opportunity of reading the reasons for judgment.  The applicant is to file such submissions, if any, with court within 14 days of the delivery of these reasons for judgment and the respondent to file any reply within seven days thereafter.