TAM WING MING v. HKSAR

FAMC No. 35 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 35 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 474 OF 2007)

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D E T E R M I N A T I O N

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Chief Justice Li :

1. On 4 December 2007, the applicant was convicted after a jury trial before V Bokhary J of trafficking in a dangerous drug contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and was sentenced to nine years’ imprisonment.  On 30 October 2008, his appeal against his conviction was dismissed by the Court of Appeal.

2. The relevant facts are summarized in the judgment of the Court of Appeal.  In summary, on 18 May 2007, the container vehicle driven by the applicant was seen by the police to stop in Mei Lai Road and a man boarded the vehicle.  This was Law Ming-tim (“Law”).  On the police evidence, Law did so empty-handed, but when he left the vehicle, he carried a black bag.  Law was then arrested.  The black bag was found to contain ketamine.  The ketamine was contained in small bags inside the black bag and also in a silver carrier bag which was inside the black bag.  No documents were found inside the black bag.  The value of the ketamine found if sold at street level was about $150,000.  Law pleaded guilty to trafficking.

3. The applicant gave evidence.  His case was that he had no knowledge of the dangerous drugs and that he had been duped.  He had been asked by a fellow driver to deliver some documents in Hong Kong and he had been given a silver-coloured plastic bag which he thought contained the documents.  When he stopped the vehicle, Law boarded it carrying a black bag.  Law put the silver bag inside the black bag and then left.

4. The applicant seeks leave to appeal out of time on the substantial and grave injustice limb.  Four matters are relied on.

5. The applicant complains that the Judge had omitted to give a “lies” direction.  This complaint was not made before the Court of Appeal.  It is argued that this direction was necessary since on the basis that the applicant had lied in his evidence about Law carrying the black bag when he boarded the vehicle, there was a danger that the jury might believe that such lying went to prove the applicant’s knowledge of the drugs inside the black bag. 

6. But on the question whether Law had the black bag when boarding the vehicle, the jury had been properly directed that only if they felt sure both that the police evidence was true and that the applicant’s evidence was false would they then be entitled to draw adverse inferences against him both in respect of his physical possession of the bag and his guilty knowledge of its contents.  In the circumstances of the present case, there was no risk that the jury might have found that the applicant had guilty knowledge because he had lied about Law carrying the black bag when boarding the vehicle and a lies direction was clearly unnecessary and may well have confused the jury.

7. Further, the applicant complains that the Judge had omitted to give the standard direction that if the applicant’s evidence “was or might be true”, he should be acquitted.  The Court of Appeal observed that it would have been preferable for the jury to have been given the standard direction.  However, it was satisfied that having regard to various passages in the summing up in the present case, the Judge had said enough to make it clear to the jury that if a doubt existed about the applicant’s guilt, they would have to acquit him.  In our view, the Court of Appeal was plainly right in so concluding, although we agree that it would have been preferable for the standard direction to have been given.

8. The applicant’s third and fourth complaints were not of omissions from the summing up but that the Judge had wrongly directed the jury (1) that they were entitled to draw an inference of guilt from the value of the ketamine found and (2) that in determining whether the applicant was a knowing courier, the jury was asked to consider whether it was realistic to think that ketamine of such value would ever be entrusted to an innocent person.

9. We are satisfied that there is no merit in these complaints.  As to (1), the value of the drugs was part of the circumstantial evidence which the jury was properly asked to consider.  As to (2), the jury was simply asked to use their common sense.

10. In conclusion, we are satisfied that there is no arguable case of departure from the norms so as to justify the grant of leave.  Accordingly, the applications for leave and for extension of time are dismissed.