HKSAR v. CHAN HO KWAI

CACC 210/2021

[2024] HKCA 86

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2021

(ON APPEAL FROM HCCC NO 4 OF 2020)

__________________________

__________________________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon M Poon JA (giving the Reasons for Judgment of the Court)

1.  The applicant was convicted after trial before Deputy High Court Judge McWalters (“the Judge”) and a jury of trafficking in 4.62 kilogrammes of cocaine narcotic, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 6 September 2021. He was sentenced to 24 years’ imprisonment on 8 September 2021. On 17 January 2023, the application for leave to appeal against conviction was refused by the Single Judge[1] on all grounds. The applicant filed a renewal application, which we heard and refused. His appeal against conviction was dismissed. We said that we would hand down the reasons for our decision in due course. This we now do.

An overview of the prosecution and defence case [2]

2.  The 4.62 kilogrammes of cocaine, with an estimated street value of $5,854,880, was hidden in several water cartridges packed in three carton boxes in a suitcase brought into Hong Kong from Johannesburg on 29 May 2019. The key issue in the case was whether the applicant knew of the presence of the drugs. The prosecution relied on his admission under caution that “I charged someone $50,000 for bringing back the dangerous drug. I haven’t received the money.” Furthermore, in a subsequent video-recorded interview, the applicant explained how it was arranged by a person called “Ng Gor” for him to travel to South Africa and bring back a package to Hong Kong for a reward of $50,000.

3.  After a contested voir dire, the verbal admission, post-record and video-recorded interview of the applicant were admitted into evidence. The applicant gave evidence in his defence. He claimed that he was deceived by Ng Gor and denied knowledge of the presence of the drugs. He also denied making the verbal admission and alleged that he was subject to police misconduct.

A consideration of the Grounds of Appeal

4.  Ground 1 complained that PW2, Customs officer 15210, who might have been able to testify in support of his case that he did not make the verbal admission, was not called to give evidence at the voir dire. We observed that whilst PW2 conducted an X-ray examination of the applicant’s luggage, the applicant was handed over to police officers at 8:36 am. PW4, PC 14579, arrested and cautioned him. The evidence of PW2 at the trial was that although he was in the vicinity he did not hear clearly what was said and so he was not sure if any police officer arrested or cautioned the applicant[3]. In any event, the voir dire only concerned the admissibility of the admissions, and whether any such admissions was made remained a factual matter for the jury.

5.  Ground 2 contended that the judge erred in not giving a lies direction. We would simply say that as the prosecution only relied on the discrepancies between the statements made by the applicant and his oral testimony to attack his credibility, a lies direction was not called for. This course was agreed after a discussion between the judge and counsel.[4] The word “lie” or “lies” was never mentioned by the Judge in his summing-up.

6.  The applicant complained in Ground 3 that it was a material irregularity that PW3, DPC 7395, the exhibit officer, who had been in court assisting the prosecution during the voir dire, gave evidence at the trial. At the hearing we were informed by Mr Lui for the Respondent that PW3 only stayed to assist the officer-in-charge after the defence indicated that PW3 was not required to give evidence at the voir dire. Once it became apparent that he would be required to give evidence at the trial, PW3 was instructed to leave the court immediately. The situation was known to defence counsel and no issue was raised about this at any time.

7.  Ground 4 alleged that the applicant was deprived of dockside interpretation after a 3 months hiatus in the middle of the applicant’s examination-in-chief at the voir dire. The court record shows that on the third day of the voir dire, 20 May 2021, the judge became concerned about the intellectual functioning of the applicant when he was examined-in-chief. The matter was adjourned for 3 months to 23 August 2021 for the defence to obtain a psychological report. The hearing resumed on 23 August 2021 when the court was informed the defence would not call psychological evidence, albeit that such a report had been obtained. The case was further adjourned to 24 August 2021 for continuation of the voir dire. Although this course adopted by the judge was most unusual, the court record shows that throughout the whole proceedings including the voir dire and the trial the court interpreter was present. The applicant’s counsel never raised any issue of lack of adequate interpretation with the court.

8.  Ground 5 was a general complaint that the conviction was unsafe and unsatisfactory based on the previous grounds of appeal. As we found that all four grounds were without merit, Ground 5 could not avail the applicant.

9.  We refused leave to appeal against conviction on those grounds accordingly and the appeal was dismissed.