HKSAR v. NG CHUN WING

CACC 424/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 424 OF 2015

(ON APPEAL FROM HCCC NO. 1 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  By a notice of renewal filed with the Court on 29 July 2016 the applicant sought leave to appeal against his conviction on 27 November 2015, after trial by Deputy High Court Judge S. D’Almada Remedios and a jury of a count of being a person in charge, permitting premises to be used for the unlawful storage of a dangerous drug on 5 September 2013, namely 19.58 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 37(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (Count 2).  That count was alternative to a count of unlawfully trafficking in the same dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 (Count 1), of which the applicant was acquitted by a verdict of the jury.  We refused the application and said that we would give our reasons in due course.  That, we do now.

2.  On 19 July 2016 Macrae JA refused the application for leave to appeal, giving detailed reasons for his determination.[1]

The prosecution case

3.  At about 15:00 hours on 5 September 2013, police officers intercepted the applicant as he came out of Room B4, 1^st Floor of Wah Sun Building, 6-20 Yin Chong Street, Mong Kok, which premises they had kept under surveillance.  As he came out of the premises, the applicant left the wooden door and metal grille ajar and looked to the left and the right.  PC 58648 advanced towards the applicant, identified himself as a police officer and showed him his police warrant card.  A search of the applicant’s person revealed nothing of significance.  Then, PC 58648 showed the applicant a search warrant in respect of the premises from which he had emerged.  PC 58648 and PC 12212 testified that having entered the premises, together with the applicant, they saw on top of a desk in the living room, into which room they entered through the front door, four plastic bags containing a white crystalline substance, which they suspected was dangerous drugs, together with electronic scales and other small plastic bags.  On analysis the white crystalline substance was determined to be the 19.58 grammes of Ice, the subject of the counts on the indictment.  It was an admitted fact that the dangerous drugs were “valued” at $12,671. [2] It was the prosecution case, that keys to the wooden door and metal grille of the premises were found inside the premises.

4.  PC 58648 testified that at 15:05 hours he had arrested the applicant on suspicion of unlawfully trafficking in dangerous drugs and cautioned him.  PC 58648 said that in responsethe applicant had replied, “I only carry or bring ‘Ice’ for somebody.  Please give me a chance”.  He said that he recorded that statement in his notebook immediately afterwards and gave it to the applicant to read.  Then, at his invitation, the applicant signed that entry in the notebook.

5.  PC 58648 said that at the conclusion of a search of the premises, at 16:25 hours, he had made a post-record of the events in which, inter alia, he recorded once again the applicant’s response to having been arrested and cautioned.  The applicant signed that entry, as he did in the statement that he had read the entry and did not require any change to the record.  Next, the applicant copied out a declaration to similar effect, which PC 58648 had given the applicant.  Finally, PC 58648 recorded the applicant’s assertion that the $10,000 that the officers had found in a search of the premises “belonged to his live-in girlfriend”.

6.  The landlady of the premises, Madam Lo, acknowledged that the tenant described in the tenancy agreement was Yip Ka Ho, not the applicant.  However, she testified that the applicant had made payments of rent directly to her.  Also, she said that he was present when a group of people came to rent the premises.  Moreover, she said that she spoke to him if there was discussion in respect of the utilities of the premises.  She issued rent receipts to the applicant.  She believed that he was the tenant of the premises.  

The defence case

7.  The applicant elected to give evidence.  He acknowledged that the dangerous drugs and paraphernalia were found in the premises, but he said that they were found underneath the desk inside a folder.  He had no idea that there were dangerous drugs in the premises.

8.  The applicant testified that he was merely a visitor to the flat.  He was a married man and lived with his two children in Tin Shui Wai.  He assisted the occupier and his friend, ‘Ah Yee’, Madam Ngai Yee, to hand over the rent to the landlady.  Ah Yee gave him the money to do so.  The actual tenant of the premises was Yip Ka-ho, who was named as tenant in the Tenancy Agreement.  The applicant said that he was at the premises on that day to help Madam Ah Yee change the water of the fish tank.  Also, occasionally he did odd jobs or renovation work for Ah Yee for free.  He worked as a decorator on a casual basis.  He accepted that he had the keys to the premises.

9.  The applicant said that when the police officers intercepted him, he had closed the wooden door and metal grille of the premises and was in possession of keys to the door and grille.  He was taken to a rear staircase and strip-searched.  His keys to the premises were taken from him and used to open the wooden door and metal grille of the premises, after which he and two police officers entered the premises.  Then, his mobile telephone had rung and he told the officers that he was supposed to be meeting a friend at a dessert shop.  Suspecting that the friend might be connected with dangerous drugs, the police officers left the premises to locate the applicant’s friend.  However, when they failed to find anyone, the Sergeant told the applicant that he was wasting his time and he would “frame [the applicant] to death”.  Then, the officers searched the premises.  They found the dangerous drugs underneath the desk in a black folder.  The applicant accepted that he had been arrested and cautioned.  However, in reply he said “I don’t know, I want to call a lawyer”.  The admission attributed to him had been fabricated by the police.  He was not allowed to talk to a lawyer until after he had signed the notebook and the post-record.  In those circumstances he had signed the post-record without reading it.  Further, the admission attributed to him had not been read to him by the police officer.

10.  The applicant said that he did not pay attention to the screen of a monitor in the living room, depicted in photographs taken of the scene between 17:40 and 18:20 hours on 5 September 2013.[3]

Grounds of appeal against conviction

11.  In written grounds attached to his Form XIII, by which the applicant gave notice of his renewal of his application for leave to appeal against conviction, the applicant contended that he could not hear Madam Lo when she was testifying.  Only later had he come to know that her testimony differed from her witness statement. Also, he reiterated his contention that the dangerous drugs had not been found on the table.  Finally, he asked rhetorically “Why was the CCTV excluded.”

12.  In the grounds of appeal attached to Form XI, by which the applicant gave notice initially of his application for leave to appeal against conviction, the applicant asserted that he did not know there were dangerous drugs in the room and that he did not rent or reside in the unit.

13.  In a letter to the court dated 16 May 2016, the applicant raised the following grounds of appeal against conviction:

(i) That the witness statement given by Madam Lo to the police never mentioned that there were issues of arrears and delay in payment of rent, or the use and bills of water and electricity.  The statement mentioned the flat was leased to Yip Ka-ho and Ng Chun Wing, when according to the tenancy agreement it was only leased to Yip Ka-ho;

(ii) The rent had been properly paid in the first two or three months, and there were receipts for the water and electricity bills; the issues about arrears and delay in rent, or in respect of bills for water and electricity never existed;

(iii) How did Madam Lo come to know the applicant’s full name, by which name she described him in her statement?

(iv) On 5 September 2013, he went to help his friend Ah Yee change the water in the fish tank, as shown from the pebbles on the toilet sink and in a water bucket at the premises;

(v) The dangerous drugs and related paraphernalia were laid out on the table by the police.  They originated from a black envelope found under the table.  He had no idea there were dangerous drugs or apparatus in the flat; and

(vi) The image on the television screen depicted in photograph 22 was not a CCTV screen.  It was highly probable that it was a “no-signal” image only.   

Application for an adjournment

14.  In his oral submissions at the hearing, the applicant sought an adjournment.  He said that he had not enough time to file written submissions in support of his application.  He said that he received notice that he had been denied his application for the grant of legal aid on 14 October 2016 only, although he acknowledged that the notice was dated 28 September 2016.  Further, he said that he had received notice that his application for assistance by the Bar Association’s Free Legal Service Scheme had been refused only on 3 November 2016.  That letter was dated 25 October 2016.  He accepted that earlier, by notice dated 11 March 2016, his original application for legal aid had been refused.  He said that he sought an adjournment until after he had served his sentence.  Then, he would be able to obtain legal advice.

15.  His application for an adjournment having been refused by the Court, the applicant reiterated his assertion that he did not know about the drugs on the premises and contended that he did not obtain any advantage.  He was not the person in charge of the premises.  At a very late stage in the hearing, the applicant informed the Court that he wished to abandon his application.

The respondent’s submissions

16.  In his written submissions for the respondent, Mr Eddie Sean contended that the ‘additional’ grounds now raised by the applicant were in essence the same grounds canvassed before and rejected by the single judge.

17.  Although it was an admitted fact that the tenant was Yip Ka-ho, it was the prosecution case that the applicant was the “person in charge” of the premises.  The issue of the outstanding rent, water and electricity charges, was not mentioned by defence counsel in his closing speech.  Perhaps, the applicant’s concern in respect of this issue arose from a misunderstanding of the prosecution’s closing speech, in which it had been asserted that Madam Ngai Yee “can’t pay rent”, which was used in the context of her lack of time.  Neither was the issue canvassed by the judge in the summing up.

18.  There was no dispute that the applicant made payments of rent to the landlady.  Also, there was no dispute that there was a fish tank in the premises.  With regard to the CCTV, the respondent invited the Court to note that the defence at trial had said “at its highest, it was some kind of CCTV image”[4].  He acknowledged that in her summing up the judge had said that it was a CCTV image.

A consideration of the submissions

19.  In refusing the application for an adjournment we were conscious that the applicant had filed Form XI, giving notice of his application for leave to appeal against conviction more than 11 months ago, on 9 December 2015.  He had been refused legal aid on 11 March 2016.  In refusing the application for leave on 19 July 2016 Macrae JA provided a detailed judgment addressing all the grounds of appeal advanced before this Court, save for the issue of the applicant’s alleged inability to hear the testimony of Madam Lo.  So, four months had elapsed since that event.  In that time, the applicant’s applications for legal aid and assistance by the Bar Free Legal Service Scheme have been refused.  The applicant had been given ample notice of this hearing.  There was no merit whatsoever in the application.

20.  In her summing up, of matters not in issue, the judge directed the jury: [5]

“ on... 5 September 2013, the defendant was seen to come out from the flat. He was then intercepted by the police officers; he was searched and nothing illegal was found on him. After the search, he was brought back into the flat by who we know now as the arresting officer and exhibits officer, and apart from those three - including the defendant - no one else was in the flat. Inside the flat, the drug as quantified in both charges, Counts 1 and 2, were found contained in four separate bags.

21.  Of the prosecution’s primary case, the judge said: [6]

“ ...the prosecution say the drugs, the electronic scale and the numerous plastic bags were found on top of the desk in the flat. The prosecution say the defendant had knowledge that the drugs were there. He exercised control over those drugs; he was therefore in possession of these drugs and he was in possession of the drugs for the purposes of trafficking in them. The trafficking is that he was dealing in them, being that either he was supplying them to someone else, or carrying or bringing them to someone.”

22.  Of the defence case, the judge said: [7]

“ ... the defendant says the drugs, the scales, the plastic bags were not on the table; they were underneath the table, inside a folder, out of view. He had no idea drugs were in the flat. He was a visitor in that flat, therefore he was not in possession of those drugs and he was therefore not trafficking in the drugs.”

23.  Of the prosecution case in respect of Count 2, the judge said: [8]

“ For the alternative 2nd count, you will only consider this count if you find him not guilty of the 1st charge. So in this charge, the prosecution say that the defendant was the person in charge of those premises. He was in possession of the drugs. He had knowledge that they were there, he was in control of them and, as the person in charge, he permitted the storage of those drugs in the flat.”

24.  Of the defence case in respect of Count 2, the judge said: [9]

“ ...the defendant says, “I’m only a visitor at those premises.  I am not the person in charge.  I assist the occupier, Madam Ah Yee, to pay the rent.  She gives the money to me and I assist her to pay the rent”.  The money for the rent is not his.  He does not live here and on that day, on 5 September, he was there for the purposes of changing the water of the fish tank and therefore he was not the person in charge.”

25.  Having directed the jury that they were only to consider the alternative count set out in Count 2 if the prosecution had failed to prove Count 1, the judge directed the jury as to the ingredients of the offence stipulated in that count , the judge said: [10]

“ The prosecution must still satisfy you that the defendant was in possession of the drugs, he had knowledge that they were drugs, but what they must satisfy you further in this case is that he was the person in charge of the premises, and he permitted the storage of those drugs.” [Italics added.]

26.  Of the element of the offence that the applicant was the ‘person in charge’, the judge said: [11]

“ In law, someone can be considered as the person in charge if he is in charge of the premises either by running, organising or planning the premises. Examples of a person in charge could be someone who pays rent to make sure that that premises can still operate. Or it could be someone who is charged with making sure that all the necessary utility bills are paid for, for the running of the premises - ‘utility’ being water, electricity, gas. The person in charge need not exercise control over the premises, such as the person in charge may not say who can enter, who can be excluded.”

27.  Of the evidence relied on by the prosecution to prove that the applicant was the ‘person in charge’ of the premises, the judge said: [12]

“ Apart from what I have told you earlier in my summing-up, the rent, the keys, the prosecution say the landlady said that she was renting the premises out to him. He was the one who made the payments to her directly and he was the one who was present there when a group of people came to rent the premises, so she believed he was the one who was the tenant. Furthermore, you will recall the landlady saying if there were any discussions or conversations needed about the utilities, electricity, she would speak to the defendant, not to Ngai Yee but to the defendant. So that is what the prosecution is saying, on that evidence, clearly, the defendant is the person in charge.”

28.  Earlier, the judge had reminded the jury of evidence relevant to that issue relied on by the prosecution: [13]

“ He was not a visitor to this flat. They say that is because he paid the rent and he paid the rent almost from the beginning of the tenancy. Despite the short tenancy, he paid the rent for three to four times, and yet from March to September was only about five months.”

Subsequently, the judge reminded the jury that the prosecution relied on the fact that the applicant had been found in possession of keys to the premises as going to the issue that he was the person in charge of the premises. [14]

29.  Of the defence case, the judge said: [15]

“ ...the fact the defendant relies upon is he had nothing to do with this flat or its contents.  This flat, the defendant says, is occupied by Ngai Yee, who is a girl who is his friend, not, as we know, a girlfriend.  The defendant says look at the tenancy agreement.  The tenancy agreement shows the tenant is Yip Ka-ho, and that is not him the defendant.  But, he says, despite the tenancy agreement being Yip Ka-ho, the actual occupier, or the person who lives there is his friend Ngai Yee.  He lives not with Ngai Yee but with his wife and children in Tin Shui Wai.  The defendant says, “I accept I pay the rent for Ngai Yee because she is a busy lady and works, but the rent I pay for her is her money, not my money”.  He has been to the flat on many occasions and he has seen other people at the flat.

On that day he was merely present there to change the water of the fish tank.”

30.  With respect to the judge, she was in error to direct the jury in respect of Count 2 that it was necessary for the prosecution to prove that the applicant was in possession of the dangerous drugs found in the premises.  In response to an enquiry by the Court, Mr Sean acknowledged that to be the case.  Whilst it was necessary for the prosecution to prove that the applicant knew that dangerous drugs were stored on the premises, it was not necessary for the prosecution to prove that he was in possession of those dangerous drugs, either by having physical control of them or, knowing the dangerous drugs to be there, that he intended to exercise control over the dangerous drugs.  The offence alleged only that he permitted the premises to be used for the storage of those dangerous drugs.

31.  The direction that the judge gave the jury, whilst in error, was one favourable to the applicant.  Accordingly, no disadvantage enured to the applicant.

32.  As noted earlier, the judge summed up the cases of the respective parties as to the factual matters in issue at some length.  In doing so, she reminded the jury of the evidence of Madam Lo and of the applicant of their dealings with each other in the premises.  No issue was raised in respect of difficulties that the applicant now asserts he had in hearing her evidence.  Similarly, the judge set out clearly the differences in the evidence of the police officers and the applicant as to the place where the former had found the dangerous drugs, electronic scales and empty plastic bags.  One issue that arose from that evidence was whether or not the applicant knew that there were dangerous drugs in the premises: [16]

“ The prosecution must make you sure that he knew that there were dangerous drugs in the premises.”

33.  In respect of Count 2, the judge said that the prosecution was required to prove that the applicant: [17]

“ .. had knowledge that they were drugs, but what they must satisfy you further in this case is that he was the person in charge of the premises, and he permitted the storage of those drugs.”

CCTV

34.  The only reference made to CCTV in the judge’s summing up was in respect of the applicant’s testimony.  Of that, the judge said: [18]

“ The CCTV in the flat, you can see on the screen when the police were there, it was on. He said he did not even pay attention to it so he does not even know whether it was on or not, but he assumes it was on.”

35.  In his judgment, refusing the applicant leave to appeal against conviction, Macrae JA expressed concern about the evidence establishing whether or not there was a CCTV monitor in the premises.  Of that, he said:[19]

“ The only matter that has given me any concern is whether or not the judge should have assumed (if that is what she did) that the screen in the Premises was a CCTV monitor.”

36.  Unfortunately in advance of the hearing, no request was made and no order given for the preparation of the transcripts of evidence relevant to that issue. However, at the hearing itself, at the initiative of the Court, the audio recording of passages in the evidence of PC 12212, the exhibits officer, and the applicant relevant to the issue were played in Court. It was an admitted fact that the photographs of the premises adduced into evidence at trial depicted the scene between 17:40 and 18:20 hours on 5 September 2013. PC 12212 testified that photograph 22 depicted the scene in the premises as the time that he, his colleague and the applicant entered the premises. That photograph depicted a monitor which was turned on. Neither he nor any of his colleagues had turned on the monitor after they had entered.

37.  In cross-examination, the applicant agreed that there was a CCTV system in the building. There was a notice to that effect on the front gate to the building, which notice was depicted in red Chinese characters on a white background on the metal front gate. He agreed that, with an appropriate monitor, each set of premises within the building could access the CCTV to view the comings and goings of people in the building. He agreed that the grey/silver coloured monitor inside Room 4B, depicted in photograph 22, displayed the CCTV picture. However, he denied that he was watching it that afternoon, in particular that he became aware of the comings and goings of a group of men in plain clothes. He denied that he had stuck his head out of the door and grille of the premises in which he was, in order to see what was going on on the 1^st Floor.

38.  Reference had been made to CCTV in the closing speeches of counsel. Mr Laskey, counsel for the prosecution said of the evidence of the police officers that the applicant had emerged from the premises and looked left and right: [20]

“ He is having a look around because he is worried about what may be taking place outside; possibly hearing the sound on the 1st floor, but very likely seeing something on the CCTV.

...

Was he in fact alerted to the presence of a number of people, obviously in plain clothes, but causing him concern?”

39.  In his closing speech for the applicant, Mr Parry addressed the issue of whether or not there was a CCTV monitor displayed on the screen inside the premises at the time when photographs were taken: [21]

“ Now, if he was doing what the prosecution claimed, if he had looked at the -- well, if he had looked at this grey monitor, he would have known something is going on outside.

I don’t know about you, members of the jury, but if I was a bad guy, and I’m not, and I had got dangerous drugs in my flat and I suspected there was police around, is one good those drugs would be straight down the toilet, by the evidence.  You can’t convict on scales and an empty plastic bag.  Just bear that in mind, members of the jury.  Why didn’t he do that?”

40.  Then, Mr Parry went on to say: [22]

“ I have dealt with the monitor. He has dealt with that. He has not even seen it there, okay. I can’t even make the picture out of what it shows anyway and I have looked. My eyesight is probably worse than the defendant’s, but I have looked and I can’t recognise that. But let’s assume, at its highest, it was some kind of CCTV image, we have heard his explanation for that. You believe it or you don’t, it’s up to you, but he said he took no notice of it that day, but my response is quite simple: had he done, he wouldn’t have taken the actions and walk right into some police officers outside.”

41.  We are satisfied that the concerns expressed in his judgment by Macrae JA are answered by the evidence now before this Court, but not available to him.  The judge was entitled to sum up on the issue of the CCTV as she did.

42.  Finally, it is to be noted that although in the Statement of Offence in Count 2 it was stipulated that the applicant was the ‘person in charge’, that phrase was not replicated in the Particulars of Offence.  We are satisfied that Mr Sean is correct in submitting that it would have been desirable that the averment be repeated in the Particulars of Offence, but that the applicant was not disadvantaged in any way that the stipulation was not repeated there.  No issue was taken at trial and everyone proceeded on the basis of that stipulation.

Conclusion

43.  In the result, we were satisfied that there was no merit whatsoever in the applicant’s grounds of appeal against conviction, which application we refused.

Loss of time

44.  Having refused the application for leave to appeal against conviction, we invited the applicant to address the Court as to why this Court should not exercise its power to order a loss of time, pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap. 221.

45.  The applicant asked the Court not to order a loss of time.  He said that, given the fact that his second written request of the Court for an adjournment in a letter dated 3 November 2016 had been refused only on 11 November 2016, he had not had time to consult his family as to the position he should take in advancing his application.  Furthermore, there was not sufficient time to write to the Court to abandon his application.

Conclusion

46.  We were satisfied that it was appropriate that this Court invoke its power to order a loss of time.  The manner in which the applicant has conducted himself has resulted in this Court’s time being spent on an application bereft of merit.  One consequence is that those with meritorious applications, in particular those who are in custody, necessarily must wait longer for their cases to be heard.

47.  In the result, we ordered that six weeks of the time that the applicant has spent in custody, from the time that he gave notice of his application to the hearing of this appeal, shall not count towards the sentence of imprisonment imposed on him by the judge.

[1] HKSAR v Ng Chun Wing (CACC 424/2015; unreported, 19 July 2016) .

[2] Appeal Bundle; page X, paragraph 4.

[3] Appeal Bundle; page X, paragraph 5.

[4] Defence Closing Submissions, Appeal Bundle, p 55 A-E.

[5] Appeal Bundle, page 1 P-U.

[6] Appeal Bundle, page 2 D-I.

[7] Appeal Bundle, page 2 J-N.

[8] Appeal Bundle, page 2 O-S.

[9] Appeal Bundle, pages 2 S - 3 C.

[10] Appeal Bundle, page 16 I-L.

[11] Appeal Bundle, page 16 L-Q.

[12] Appeal Bundle, pages 16 R - 17 D.

[13] Appeal Bundle, pages 11 S - 12 B.

[14] Appeal Bundle, page 12 I-J.

[15] Appeal Bundle, pages 12 S - 13 G.

[16] Appeal Bundle, page 9 K-L.

[17] Appeal Bundle, page 16 I-L.

[18] Appeal Bundle, pages 24 T - 25 A.

[19] HKSAR v Ng Chun Wing, paragraph 23.

[20] Appeal Bundle, page 45 D-H.

[21] Appeal Bundle, page 54 M-Q

[22] Appeal Bundle, page 55 A-E.