HKSAR v. SO TSZ KON

[ENGLISH TRANSLATION – 英譯本]

CACC 157 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 157 OF 2013

(ON APPEAL FROM HCCC 421 OF 2012)

_______________________

REASONS FOR JUDGMENT

Hon Yeung Acting CJHC (giving the reasons for judgment of the Court):

Introduction

1.  On the morning of 21 March 2012, the police stopped a private car KX 9176 at Nos 26-36 Prat Avenue, Tsim Sha Tsui.  The applicant (So Tsz Hon), the registered owner of KX 9176, was in the driver’s seat at the material time, while Yip Man Hei (Yip) and Wong Kai Wing (Wong) were in the front passenger seat and the left rear passenger seat respectively.

2.  Upon search, the police found from the right rear passenger seat a red-coloured bag, inside which were other plastic bags which contained a total of 1.96 kg of a powder containing 1.65 kg of ketamine, the retail value of which was approximately $220,000.

3.  The applicant, Yip and Wong were arrested.  The applicant said under caution that he had nothing to do with the case.  He said that one “Man Chai” (transliteration) called him on the morning of the material day, telling him to drive to Prat Avenue for something urgent.  When the applicant arrived at Prat Avenue, “Man Chai” got in the car and immediately “dropped” the red-coloured bag in his hand on the rear passenger seat.  The applicant said he did not know that there was drug inside the red-coloured bag.

4.  The police also found upon search in KX 9176 other items including two mobile phones (P20 and P23), two notebooks (P14 and P15) and two Octopus Cards (P16 and P17).

5.  On the afternoon of the same day, the applicant said in the video-recorded interview with the police that the nicknames of Yip and Wong were respectively “Man Chai” [transliteration] and “Kai Chai” [transliteration], and that he had known them for two months or so.

6.  The applicant reiterated that he received Yip’s call in the morning and that, as instructed by Yip, he drove KX 9176 to Prat Avenue and stopped off the entrance of a McDonald’s restaurant.   After receiving a subsequent phone call from Yip, he reversed the car to the downstairs of Sun Hot Sauna.  At that time, he saw Yip and Wong walk out of Sun Hot Sauna and get straight into KX 9176.

7.  According to the applicant, Yip placed a bag on the rear passenger seat, and then went over to take the front passenger seat and put a packet of cigarettes and a phone on the dashboard, whereas Wong took the rear passenger seat.  When the applicant asked him where to go, Yip told him to start off first, but they were stopped by the police right at that moment.

8.  When questioned by the police, the applicant reiterated that he did not know that there was drug inside the bag.  In reply to the police’s enquires about the contents of P14, the applicant said that it was a record of the times, dates and places of the rides he gave Yip, for the purpose of collecting remuneration.  The applicant explained that he would charge Yip $300 for the “petrol” every time he gave him a ride to a place designated by him, and P14 recorded some telephone numbers and abbreviations of sundry places.  The record shows that the applicant had received amounts as much as $1,000-odd or even $2,000-odd.  The applicant said that he had asked Yip if he was engaged in illegal activities but Yip had denied.

9.  The applicant also said that he had written his own name and telephone number in P15, which belonged to Yip, so that people could notify him in case his car blocked anyone’s way.

10.  The applicant said that P16 was lent from Yip for the purpose of passing the car park barrier and that P17 belonged to himself.

11.  The applicant said that P20 was “given” to him by Yip for his use, whereas P21 was the applicant’s own, but the SIM card was transferred to P20.

12.  The applicant also gave an account to the police of how he met Wong and their past dealings.

13.  Following the above incident, the applicant was charged with unlawful trafficking with Yip in the ketamine in question.   The applicant pleaded not guilty and was tried before Deputy High Court Judge Yau (the trial judge) sitting with a jury.

14.  On 12 April 2013, the applicant was convicted as charged by the jury.  On 15 April 2013, he was sentenced to 16 years’ imprisonment.

15.  Represented by Mr So of Counsel, the applicant applied for leave to appeal his conviction and/or sentence.

16.  At the conclusion of the hearing, we granted leave to the applicant to appeal his conviction and, treating the hearing as the appeal proper, we allowed the appeal, quashed the conviction and set aside the sentence. However, we ordered that the case be remitted to the Court of First Instance for retrial and that the applicant be remanded in custody pending retrial.  The reasons for our decisions are set out below.

Prosecution case

17.  There was little dispute over how the incident happened.  The prosecution contended that the evidence was sufficient to prove that the applicant and Yip were in joint possession of the ketamine in question, for the purpose of delivering or supplying it to others.

18.  It was the prosecution’s case that the applicant knew not only the presence but also the nature of the drug inside the bag placed on the rear passenger seat of KX 9176, and that he was in possession of the drug for the purpose of delivering and supplying it to others.  With a view to proving the applicant’s knowledge, the prosecution witness pointed out in his testimony that when the police tried to stop the applicant for a search, the applicant did not stop the car promptly, but instead drove past the police officer who tried to stop him, as a result of which the police had to stop a police vehicle across Prat Avenue in order to prevent the applicant from driving the car away from the scene.  In his closing submission, prosecuting counsel emphasized to the jury the prosecution’s stance in these terms:

“Taking a chance then, moving slowly bit by bit until the car moved away. What happened in the end? It got past PW1 and did not stop, even though PW1 gestured and signaled him to stop. He thought he could get through, going, going away slowly. But subsequently, the emergency unit vehicle simply blocked Prat Avenue at an angle. There was no way to escape. He had no choice but to stop. That was the defendant, the driver on the material day…”

The applicant’s case and evidence

19.  The evidence adduced by the prosecution was largely undisputed. The applicant agreed that the bag of ketamine in question was found upon search from the rear passenger seat of KX 9176.  He also indicated that he knew the bag was there.  However, he denied knowing that the bag contained ketamine or any other contraband.  His case was that he had nothing to do with it, Yip being the sole author of the whole incident.

20.  In his testimony at trial, the applicant said that he used to be a driver by profession, but from April to May 2012, he worked in a computerized automobile services company as a repair and maintenance technician.  He asserted that what he said under caution and throughout the police interviews was true.

21.  The applicant went on to say that he was introduced to Yip by one Law Hoi Yiu [transliteration] in early March 2012, and KX 9176 was purchased on the internet for $14,000 in the same month, and since then he had become Yip’s part-time chauffeur.  The applicant stressed that the remuneration of $300 that Yip gave him for every trip was the market price and not a particularly handsome reward.

22.  The applicant also explained why Yip and Wong kept calling him at 7 am or so on the day of the offence.  He testified that he was still sleeping so he did not answer the phone, and then he even set the phone to the vibration mode and did not answer any call.  Yip therefore had to text him on the phone.  Only at 9:05 am or so did he answer Yip’s call, and then he went to Prat Avenue upon Yip’s instruction.  The applicant reiterated in his evidence that when a police officer tried to stop him, Yip said, “Ignore him, just rush on”, but he still stopped the car because he had done nothing wrong.

23.  The applicant admitted under cross-examination that at the first police interview he did say that he stopped the car because the police vehicle “obstructed” the road, but he also pointed out that even if the police vehicle had not obstructed the road, he would still have stopped the car.  The applicant explained why he opened a bank account without depositing money into it, and also explained his relationships with Yip and Wong and their nicknames.

24.  The applicant also explained the contents of the notebook found upon search from KX 9176.

25.  Apart from giving evidence himself, the applicant also called Law Hoi Yiu to give evidence.  Law confirmed that after he came to know Yip in March 2012, he introduced the applicant to Yip as his chauffeur.  Law testified that he did not know much about Yip.

The trial judge’s directions to jury

26.  The trial judge gave the jury detailed explanations of both the questions of law and factual issues arising from the case.

27.  The trial judge emphasized once and again to the jury that if they could not be sure that the applicant knew that there was drug inside the plastic bag in question, they must return a verdict of not guilty.  The trial judge made it clear that the jury could find the applicant guilty if and only if they were sure that: (1) the applicant knew that there was “drug” inside the plastic bag in question or even knew that the drug was ketamine; (2) the applicant had the intention and ability to have custody of or exercise control over the drug; and (3) the applicant had custody and control of the drug for the purpose of delivering and supplying it to others.  The trial judge emphasized that it was open to the jury to draw a reasonable inference in respect of the purpose of the custody and control of the drug by the applicant, but that if the jury inferred that the applicant had custody and control of those drugs for the purpose of delivering and hence supplying it to others, that inference must be the only reasonable inference, otherwise they would have to acquit the applicant.

28.  The trial judge also gave the following directions to the jury:

“Now I also need to further explain this to you: if, having considered all the testimonies and all the evidence, you are sure that the defendant was in possession of the drug, but you cannot be sure or do not accept at all that the defendant was in possession of the drug for the purpose of delivering and supplying it to others as alleged by the prosecution, you will still have to find the defendant guilty. This is because the present case involves a large quantity of drug which is worth up to HK$200,000-odd in value. Therefore, if you are sure that the defendant was in possession of the drug, then this could not possibly have been for the purpose of self-consumption or visual appreciation. We have before us evidence on the defendant’s background and financial condition. Therefore, if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn. Hence, even if you cannot be sure or do not accept that the defendant was in possession of the drug for the purpose of delivering and supplying it to others, he was still in possession of the drug for other unlawful trafficking purposes. This must of course rest on the premise that you are sure, first of all, that the defendant was in possession of the drug, and if you cannot be sure that the defendant was in possession of the drug, you must return a verdict of not guilty.”

Grounds of appeal

29.  Mr So, Counsel for the applicant, put forward the following grounds of appeal:

(1) The trial judge misdirected the jury that as long as they were sure that the applicant was in possession of the drug in question, they should find the applicant guilty of drug trafficking;

(2) The trial judge misdirected the jury that it was not necessary for the prosecution to prove that the applicant intended to use the drug in question for the trafficking purpose alleged by the prosecution, and that it would be sufficient if the applicant had other trafficking purposes;

(3) The trial judge not only failed to analyze or explain the evidence, such as the red-and-black notebook, adduced in support of the allegation that the applicant knew the plastic bag contained drug, but also failed to tell the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug; and

(4) The trial judge failed to make it clear to the jury that the evidence might suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, and that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.

30.  Mr So contended that whether or not the applicant was in possession of the drug in question for the purpose of unlawful trafficking was a factual issue to be determined by the jury, and that the trial judge should not have directed them that they could jump to the verdict that the applicant was guilty of unlawful trafficking if they firmly believed that the applicant was in possession of the drug in question.

31.  At the suggestion of the Court, Mr So advanced a further ground of appeal, namely that the prosecution relied on the applicant’s attempt to flee the scene at the material time as evidence of his knowledge of the drug, but the trial judge failed to give the jury a “flight” direction, and such failure caused injustice to the applicant.

Discussion

32.  The applicant, who was the registered owner of KX 9176, was driving that car at the material time.  The drug in question was found upon search from the rear passenger seat of KX 9176.  The applicant also admitted that he knew that something contained in the plastic bag was inside the car.  The issues were whether the applicant knew that there was drug inside the plastic bag and whether the applicant had the intention and ability to deal with that bag of drugs.  If the applicant knew that there was drug in the plastic bag and he had the intention and ability to deal with them, then he would be regarded as being in possession of that bag of drug.  If the applicant was in fact in possession of the bag of drug, then another issue was whether he was in possession of the bag of drug for the purpose of unlawful trafficking.

33.  Being unable to adduce direct evidence on issues such as the applicant’s knowledge, intention, ability or purpose, the prosecution could only invite the jury to draw adverse inferences against the applicant in respect of those issues.

34.  The inference which the prosecution invited the jury to draw was that the applicant not only had knowledge of the nature of the bag of drug, but also had the ability and intention to deal with it, and therefore the applicant was in possession of the bag of drug.  The jury was invited to further infer that the applicant was in possession of the bag of drug for the purpose of unlawful trafficking and to convict the applicant accordingly.

35.  The trial judge made it clear to the jury at the outset of his directions that:

“… in the present case, the most important matters on which you have to decide are whether the defendant knew that there was such a plastic bag in the car, whether he knew that there was drug inside that plastic bag, and whether he was in possession of the drug for the purpose of unlawful trafficking.”

36.  The trial judge provided a detailed explanation of “inference”, citing examples to illustrate the meaning of “the only reasonable inference”.  The trial judge made it clear to the jury that they were not allowed to make any adverse inference against the defendant unless it was the only reasonable inference that could be made.

37.  The trial judge did remind the jury that, although the prosecution case was that the applicant and Yip committed the offence in concert, the jury had to firmly believe that the applicant was in possession of the drug for the purpose of delivering or supplying it to others before they could find him guilty.

38.  The trial judge repeated to the jury in detail the prosecution and defence evidence, including the circumstances of the arrests of the applicant, Yip and Wong as well as their responses.  

39.  It is for the jury to decide how to make reasonable inferences based on evidence to resolve issues in dispute in a case.

40.  The facts of the present case are straightforward and the applicant’s stance was clear.  The issues before the jury were: whether they could draw the only reasonable inference that the applicant knew that there was drug in the plastic bag in question and that the applicant had the intention and ability to deal with the drug; and, if the jury found that the applicant was in possession of the drug, whether the applicant was in possession of it for the purpose of trafficking.

41.  The directions given by the trial judge on the above issues were thorough, correct and sufficient, except in the following two aspects which are open to question.

42.  With the trial judge’s directions, the jury must have had a clear picture of the case and the evidence of both parties and must have understood the issues to be decided by them.  We do not consider it necessary for the trial judge to point out to the jury specifically that there was no direct evidence showing that the applicant had knowledge of the existence and nature of the drug in question, or that the evidence might merely suggest that the drug in question was in the possession of Yip or Wong without the applicant’s knowledge, or that even if the applicant had knowledge, he might have no idea about the real purpose of the drug.

43.  The trial judge repeatedly emphasized to the jury that they could convict the applicant only when they were sure that the applicant had knowledge of the presence and nature of the drug in question and were also sure that the applicant was in possession of the drug for the purpose of delivering or supplying it to others.

44.  The trial judge and the jury play different roles in criminal trials in the High Court.  Jurors act as arbiters of fact, and issues such as whether or not a defendant was in possession of drugs and whether the defendant was in possession of those drugs for the purpose of unlawful trafficking, being issues of fact, should be decided by the jury.

45.  The present case involves ketamine of a total weight of 1.65 kg and with a total value exceeding $200,000.  When the applicant was in possession of such a quantity of ketamine, and in the absence of other acceptable evidence showing that the applicant had credible reasons for possessing such a large quantity of ketamine, it would not be difficult for the jury to draw the only reasonable inference that the applicant was in possession of the drug for the purpose of unlawful trafficking.

46.  On the above issues of fact, the trial judge should not have usurped the jury’s role as arbiters of fact.  It was open to the judge to express his views, but in the end those issues should still be left to the jury for determination.

47.  In his directions to the jury, the trial judge said, “if, having considered all the evidence, you are sure that the defendant was in possession of the drug, then such possession must have been for the purpose of unlawful trafficking, and no other conclusions can possibly be drawn.”

48.  The above direction given by the trial judge is in our view improper.  However, a mistake made by the trial judge does not necessarily lead to the quashing of his judgment by the Court of Appeal unless the mistake has actually resulted in a miscarriage of justice (see section 83(1) of the Criminal Procedure Ordinance).

49.  In our judgment, against the background of the present case, the above mistake made by the trial judge would not have caused any miscarriage of justice.  The jury must have been sure that the applicant knew that the drug in question was inside KX 9176 which was registered in his name and driven by him, and that he had knowledge of the nature of the drug.  The jury must also have been sure that the applicant had the intention and ability to deal with that bag of drug and that he was in possession of that bag of drug.

50.  Given the quantity and value of the drug in question, and in the absence of any reasonable and credible evidence to the contrary, any reasonable jury would have been sure that the applicant was in possession of the drug for the purpose of unlawful trafficking.  Mr Socontended that the trial judge had misdirected the jury by saying that they should convict the applicant of drug trafficking once they were sure that he was in possession of the drug in question, but in our judgment this does not constitute a valid ground of appeal which would be sufficient to overturn the jury’s verdict.

51.  On the other hand, we consider it improper for the trial judge not to have directed the jury on “flight”.

52.  The prosecution case was clear enough: when the police officer tried to stop and search KX 9176, the applicant attempted to drive away from the scene, as a result of which the police had to block Prat Avenue with an emergency unit vehicle so that the applicant could not flee. If this was indeed the case, the applicant’s attempt to flee would suggest that he had knowledge of the drug, as otherwise there would be no reason for him to have tried to avoid the stop and search by the police.

53.  Mr Jonathan Man, Assistant Director of Public Prosecutions for the respondent, fairly and frankly admitted that the prosecution did rely on the applicant’s attempted flight to strengthen its case that the applicant had knowledge of the drug.

54.  The applicant reiterated in his evidence that he did not intend to flee at the material time.  He even testified that although Yip asked him to “ignore him, just rush on”, he stopped the car as he had done nothing wrong.

55.  This being the case, whether and (if so) why the applicant attempted to flee at the material time would have a material bearing on the issue of whether he had knowledge of the drug.  If the prosecution case was correct, there would be a close connection between the applicant’s flight and the offence with which he was charged, the position being analogous to a defendant who lied with a view to avoiding criminal liability (See HKSAR v Mo Shiu Shing [1999] 1 HKC 43).

56.  Where the prosecution relies on the fact that a defendant has lied as evidence of his guilt, or where a lie told by a defendant will strengthen the case against him, the trial judge is obliged to give the jury a “lies” direction, so as to ensure that the jury will not erroneously return a verdict adverse to the defendant on the basis of the lie (see, for example, HKSAR v Yuen Kwai Choi (2003) 6 HKCFAR 113; HKSAR v Jim Fai (2006) 9 HKCFAR 85).

57.  In HKSAR v Chan Boon Ning CACC 571/2001, Stock JA (as he then was) said (at para.48 of his judgment):

“It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”

58.  It is beyond doubt in the present case that the prosecution did rely on the applicant’s attempted flight at the material time, the allegation being that he had knowledge of the drug and therefore sought to flee in order to escape arrest.  The trial judge should have given the jury a “flight” direction in the following terms:

“The prosecution alleged that the defendant attempted to flee the scene after the crime, they are therefore entitled to consider whether this supports the case brought against him by the prosecution. It is necessary for the jury to consider the following questions:

(1) Whether the defendant did in fact attempt to flee after the crime. If the jury are sure he did, then next consider:

(2) Why did the defendant flee?  The mere fact that a defendant attempts to flee is not in itself evidence of guilt.  There are many innocent reasons why a person may do so, for example, out of fear of the police, or due to commission of an offence unrelated to the present one or of some other disgraceful act.  If the jury think that there is, or may be, an innocent explanation for his attempted flight, then they should take no notice of his attempted flight.  It is only if the jury are sure that the defendant did not attempt to flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that they can regard his attempted flight as evidence which supports the prosecution case.”

59.  In the present case, the applicant’s attempted flight was relied on in support of the prosecution case.  The trial judge’s failure to give the jury a “flight” direction constituted a material irregularity in the trial.  This is tantamount to a judge’s failure to give the jury a “lies” direction where the prosecution relies on lies told by the defendant as evidence of his guilt. ; In both cases, the failure constitutes a material omission which renders the jury’s guilty verdict unsafe (see HKSAR v Sham Kit Yi & Another [2004] 2 HKLRD 407).

60.  Mr Man invited us to dismiss the application for leave to appeal by applying the proviso, arguing that the evidence against the applicant was so overwhelming that any reasonable jury would have found the applicant guilty.

61.  With respect, we do not agree.  While it is true that the evidence against the applicant is cogent, the outcome of the case must still hinge on whether the applicant had knowledge of the drug, and there is a direct connection between the allegation of attempted flight against the applicant and his knowledge of the drug. In these circumstances, we do not agree this is an appropriate case in which to apply the proviso.

62.  We allow the appeal, quash the conviction and set aside the sentence.  However, we agree that there is sufficient evidence against the applicant and it is only by reason of the material irregularity in the course of trial that the conviction is quashed.  We therefore order that the present case be retried and that the applicant be remanded in custody pending retrial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor