HKSAR v. YEUNG WAI HO HENRY

CAC C 533/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2011

(ON APPEAL FROM DCCC NO. 877 OF 2011)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1. On 1 December 2011, the applicant was convicted by Judge Woodcock in the District Court of one charge of trafficking in a dangerous drug, namely, 108.41 g of a powder containing 79.8 g of ketamine.  For that offence he was sentenced to 6 years’ imprisonment.  He pleaded guilty to one charge of resisting a police officer in the execution of that officer’s duty for which offence he was sentenced to 3 months’ imprisonment, which term was ordered to be served concurrently; making a total of six years’ imprisonment.

2. The applicant now seeks leave to appeal the conviction for trafficking in dangerous drugs.  In the course of the hearing before this Court, he abandoned his application for leave to appeal the conviction for resisting a police officer in the execution of his duty, and that application stands dismissed.  There is no application in relation to sentence.

The evidence

3. The events in question took place on 15 June 2011.  The prosecution evidence, largely accepted, was that about 8:25 pm that day, two police officers, a male and a female (PW1 and PW2), were in uniform on patrol at the podium of Fu Yee House, Fu Cheong Estate, Sham Shui Po.  The purpose of the patrol was because there had been a complaint about noise by a group of youngsters.  At that podium they saw the applicant and another male, who was apparently called or who called himself Szeto Chi–ching walking towards the lift lobby.  The applicant was wearing jeans and he was walking a short distance behind Szeto.  The male officer called out to the two to stop.  They did not do so, so the officers intercepted them.  PW1 asked the applicant if he knew the other person (Szeto) and the applicant said he did; whereas PW2 asked Szeto whether he knew the applicant and he said he did not.  So the two intercepted persons were separated and PW1 dealt with the applicant and PW2 dealt with Szeto.

4. PW1 said in evidence that the applicant behaved most strangely: he kept looking around and sometimes laughed.  He could not stand steadily, so much so that he leaned against some pillars.  He looked as if he was influenced by drugs.  The officer told him that he suspected he was in possession of dangerous drugs and commenced a search.  Nothing was found in the front pockets of the jeans but when the officer was about to search the rear pockets, the applicant pushed him away and ran.  Whilst running, the applicant fell and was caught.  There was a struggle and the applicant was handcuffed.  There was a search of the back pockets of the jeans.  The officer took three packets out first; then another three packets; and then two packets – eight packets in all.  On each occasion, said the officer in his testimony, he asked the applicant what was in the packets but no answer was provided.

5. Then the officer cautioned the applicant and asked him whether he had anything to say and the applicant replied that he had nothing to say.

6. PW2 testified about her apprehension of Szeto – the young man who had said he did not know the applicant.  She asked him his name and address and ID number and these he wrote down on a piece of paper.  He said he lived at the Estate, that is to say, Fu Cheong Estate.  However, when her colleague gave chase after the applicant, she went to her colleague’s assistance and Szeto made off and was not subsequently arrested.  It was conceded that he had given a false ID number.  A search of him had been conducted at the scene but no drugs were found on his person.

7. The applicant testified in his own defence.  At the time of his testimony, he was aged 27 years; had attended sixth form in England and after his return had been a legal assistant and a salesperson but was unemployed at the time of his apprehension. In 2008 and in 2010 he had been convicted of possession of a dangerous drug: cannabis on the first occasion and ketamine on the second.  He had been sent to a drug addiction treatment centre from which he had been released in July 2010 but had been recalled and was due to report the day after his arrest to the Centre in response to that recall. 

8. His defence was that he was not aware of the eight packets in his back pocket.  He had only purchased one packet; so the presence of the extra seven was a mystery to him.  Szeto, the other man, was his drug supplier, he said.  He regularly purchased drugs from him at that estate. That is why he had gone to the estate on 15 June 2011.  In accordance with a prior arrangement, he went to the fourth floor and spoke to Szeto by telephone and was told to go to a flower bed and retrieve a packet of ketamine from amongst a hoard in a black plastic bag which was there. Because he, the applicant, was due for recall the following day he purchased more than otherwise he would.  Nonetheless, he only took one packet from the big plastic bag and returned to the podium where he paid Szeto $800 for the packet which he had purchased.  Immediately thereafter he, the applicant, took out a banknote, ground some ketamine and then sniffed it.  He then became affected by the drug, so that he had little idea of what then transpired.  He did not really know – he could not say for sure – how the other seven packets came to be in his back pocket, but the theory postulated by the defence was that Szeto the dealer, aware of the presence of the police and the condition of the applicant, placed the other seven packets into the back pocket of the applicant’s jeans so as to escape detection for trafficking – and they relied, as supporting their suspicion, upon Szeto’s untruthful assertion that he did not know the applicant and upon his provision of a false identity number.  When asked in cross-examination why he fled from police officers the applicant said that it was because he knew he had an illicit substance on him and that there was a warrant out for his recall.

The judge’s questions

9. At the close of his evidence, the judge asked the applicant a series of questions one of which was directed at the fact that when he was at the police station after his arrest, he was told that he had been arrested for possession of dangerous drugs and the number of packets, namely eight, was mentioned to him.  The judge asked what his reaction was when he heard that he was “implicated in eight bags of drugs, not one”; and he said that when he heard that, he asked to make a telephone call but was not allowed to do so.  The judge asked: “Did you tell any police officer that eight bags don’t belong to you, seven bags not belong to you?”  To which the applicant said no, he had not said anything at all and the judge asked him why not; was he not shocked?  Had he not asked “What have I admitted, have I told you?”  And he said no, he had not asked that question.

The Reasons for Verdict

10. In her Reasons for Verdict, the judge stated correctly that the defence case was that the defendant had knowledge of one bag of ketamine only but that he did not know of the other seven.

11. At the outset of that part of the Reasons which constitute her analysis of testimony, the judge referred to one of the presumptions raised by section 47 of the Dangerous Drugs Ordinance, Cap 134.

12. Section 47 provides as follows :

“(1) Any person who is proved to have had in his physical possession -

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.”

13. Surprisingly, the presumption upon which the judge concentrated was that in subsection (2); surprisingly because that subsection – if it is to be relied upon at all – relates not to the question whether there is knowledge that an item is on one’s person (which was the question in this case) but whether one knows that the item is a dangerous drug (see Hung Chan Wa v HKSAR [2005] 3 HKLRD 274 at 316 G-H).  What she said was :

“25. Section 47 of the Dangerous Drugs Ordinance provides specifically at section 47(2):

‘Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.’

26. In this case, if the defendant knew he was in possession of the other seven packets, he would know and comprehend their nature, the substance. But he says he did not know he had them. They were put in his pocket without knowledge. He only knew of one packet of ketamine only.

27. I need to decide whether sufficient evidence as to the lack of knowledge has been adduced to raise a real issue on the presumption of possession. If that evidential burden has been discharged, then it is up to the prosecution to prove that the defendant did not know he was in possession of the seven other bags. It is not up to the defence to prove that he did not know. If what he says may be true, then he should be acquitted. This approach I take from the authority of HKSAR v Hung Chan Wa & Another [2005] 3 HKLRD 291. The decision there was affirmed by the Court of Final Appeal in [2006] 3 HKLRD 841. I specifically refer myself to what Stock JA had to say at [2005] 3 HKLRD 291 at pages 355D to 356D. In short, section 47 of the ordinance is to be construed as creating an evidential onus only.

28.    However, after reviewing the evidence of the prosecution, largely unchallenged, and the evidence of the defendant, I find no real issue raised on the presumption of possession.  I do not believe the defendant’s evidence and I reject it outright.  I am sure he knew what was in his pocket was eight bags of ketamine.  It is too highly unlikely to be credible, possible or believable, and I make this finding for the following reasons.”

14. The reasons which she then itemized were these :

(1)  The applicant ran when PW1 was about to search the pocket containing drugs – the applicant was, said the judge, “compos mentis enough to know PW1 was about to find ketamine.  That does not sit well with his evidence he was heavily under the influence of ketamine … unable to comprehend his surroundings.”

(2)  He purchased a bigger bag of dangerous drugs than normally he would because he knew he was going back to the drug addiction treatment centre the next day.  “This does not make sense.  Moreover, he was able to answer questions with logical answers [a reference to questions about his address and why he had come to the podium] which suggests he was able to process the questions despite having taken drugs.”

(3)  It was unlikely that the dealer would keep a bag in a flowerbed with so much ketamine.

(4)  If the applicant was correct and the seven bags belonged to his supplier, the supplier would have left them in the flowerbed and not plant them on the applicant and stay so close to the applicant.

(5)  If the supplier had planted the drugs on the applicant because the police were nearby, the supplier would have kept a greater distance between himself and the applicant.

(6)  If the supplier had planted the drugs on the applicant, it made no sense for the supplier to be walking ahead, rather than behind, the applicant.  “The reality is, "she said" although there was another boy stopped by PW2 who gave a false identity card number, that does not prove he was … the drug dealer.  PW2 gave evidence [that the other person] was also acting strange and jumpy.  He acted nervously and he left when PW2 left him to help chase the defendant.  That does not indicate he is a drug dealer.  A teenager maybe high on drugs would leave the police as soon as he could.  That is a survival instinct and that is maybe what he did here.”

(7)  The applicant “watched the police bag into exhibit bags at the station eight packets of dangerous drugs, not just one.  By then, he was aware of what was going on.  Time had passed, but he did not raise the issue that he only bought one bag, not eight because he had no idea what he had said to the police whilst under the influence of dangerous drugs.  Yet, he did not ask the police what or if he had said anything earlier.  I am sure this is because he accepted all eight were in his possession and he knew there were eight.”

(8)  “I am sure he made no reply to PW1, expressed any opinion or feigned ignorance when shown all eight packets that came out of his pocket because he knew they were there.”

15. The judge concluded that she was sure that the applicant knew he had eight packets in his pocket when he was intercepted and she convicted the applicant of the charge.

Analysis

16. We are satisfied that the judge erred in her application of the presumption.  It is not the fact that she identified the wrong subsection that is the problem but, instead – and assuming she was in reality addressing the presumption that he knew that he had the eight packets on him – her finding that the evidential burden had not been discharged.  “I need to decide whether sufficient evidence as to the lack of knowledge has been adduced to raise a real issue on the presumption of possession,” she said and found that “after reviewing the evidence of the prosecution, largely unchallenged, and the evidence of the defendant, I find no real issue raised on the presumption of possession.”  The reasoning is, with respect, not capable of support and it seems clear to us that the judge has unfortunately misunderstood the passages upon which she relied from Hung Chan Wa, as to the nature of an evidential burden.  The Court there said that “an evidential burden is not discharged by the mere mouthing of words by an accused” but that it is discharged if an accused (or some other source) puts evidence before the court which, if believed, could be taken by a reasonable jury to support the accused’s defence: see pages 355G to 356A of that judgment.  

17. What happened in this case was far more than some bald assertion, without more, that the applicant did not know he had drugs in his pocket.  He adduced evidence about the reason for going to the podium; what it is that he intended to buy; what it is that he was told to extract from a black plastic bag; and that he only extracted one packet, not eight.  It is difficult to see what more, in the context of this case, he could have said by way of discharging the evidential burden.  Clearly, the evidence which he placed before the court was evidence which, if believed, could be taken by a reasonable tribunal of fact to support his defence.  The direction which the judge gave to herself was, accordingly, a material misdirection.

18. In this regard it might be assumed from the majority decision in HKSAR v Poon Kiu Yu [2010] 2 HKLRD 800, a decision of this Court differently constituted, that all it takes for the discharge of an evidential burden is the mere fact of a defendant giving evidence.  Such an assumption would be erroneous.  The mere fact of giving evidence does not discharge the evidential burden; it must be evidence on the issue in question and more than a bald denial of knowledge; there must be some evidence which if believed could be taken by a reasonable fact finder to support the assertion of lack of knowledge; and, further, the evidential burden may be discharged even if the accused does not give evidence – it may be discharged by evidence given by a witness on his behalf or even by evidence emanating from prosecution testimony.

19. It might well be possible to take the view that the misdirection of itself may not be fatal to the conviction because of the judge’s statements that she did not believe the applicant’s testimony and was sure that he knew what was in his pockets; but the problem with the Reasons does not end there, for there is a further and, in this instance, a clearly material difficulty with the judge’s approach, which is the use she made of his silence at the police station when he saw the eight packets and knew that he was accused of possession of all eight.  It is the law that “it is inappropriate in Hong Kong to use a person’s silence against him in any way”: Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at 622.  It is the fact, however, that the judge used the applicant’s silence against him saying, in relation to his silence at the police station, that: “I am sure this is because he accepted all eight were in his possession and he knew there were eight.”  That, as a matter of law, was not a permissible line of reasoning.

20. We note as well the judge’s statement that the fact of Szeto’s odd demeanour and his provision of a false identification number did not “prove he was [the supplier]”, which, on its face, gives rise to a question whether the onus was correctly applied; though on its own this phraseology is unlikely to have resulted in the quashing of the conviction since one can safely assume that this experienced judge would not apply that particular onus incorrectly.  But we can understand why the point is raised, given the error as to the evidential burden.

21. So, it is established on the applicant’s behalf that there were material misdirections; Mr Tam for the respondent concedes as much in terms in relation to the evidential burden, the approach to silence, and the less central point to which we refer in the immediately preceding paragraph.

22. The issue which therefore arises is whether this is a case in which it is appropriate to apply the proviso.  We thought at one stage that it would be appropriate to apply the proviso for the one reason that it was so highly unlikely that the dealer on the applicant’s account would stuff eight packets into the pocket of the applicant’s jeans; packets which the police removed in three stages.  But in this regard, we have not the advantage of any photographs of the clothing and, more particularly, we note that of the eight points upon which the judge relied, this was not one of them.  Nor have we any photographs of the scene in question or any analysis by the judge as to whether there was or may have been a time when the applicant and Szeto were out of sight of the police when stuffing of the pockets, whilst the applicant was the worse for his drug taking, might have been possible.  In addition, two of the eight points relied upon by the judge (the evidential burden issue aside) were the applicants’ silence.  Still further, it is unusual in our combined experience of such cases for a dealer, as the applicant was portrayed, to consume drugs to a “high” – as this applicant on all the accepted evidence did – whilst on a shift of selling drugs, a consideration that the judge does not appear to have placed in the balance.  All in all therefore, we do not consider this an appropriate case for application of the proviso.

Result

23. Accordingly, the application for leave to appeal against conviction in relation to the drug trafficking charge is granted; we treat the hearing of the application as the appeal; allow the appeal and quash the conviction upon the charge of trafficking.

24. The quantity of drugs was significant and the evidence most readily raises a case to answer.  We are of the view that a retrial is warranted and we order that the applicant be retried upon a fresh charge sheet for the offence of trafficking in dangerous drugs.  Pending retrial, the applicant is granted bail on terms that will be notified to the applicant on handing down of this judgment.