HKSAR v. LI CHEUK WAH

CACC 135/2021

[2022] HKCA 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 135 OF 2021

(ON APPEAL FROM HCCC NO 53 OF 2020)

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J U D G M E N T

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1.  On 16 June 2021, the applicant was convicted after trial before M Poon J (as she then was)  (the judge)  and a jury of one count of trafficking in a dangerous drug, consisting of 2,877 grammes of a powder containing 2,333 grammes of ketamine. The applicant was sentenced to 19 years and 10 months’ imprisonment.

2.  The applicant now applies for leave to appeal against his conviction only.

The brief facts

3.  On 18 March 2019, the applicant opened a virtual office account at the Jumpstart Business Centre (Jumpstart)  by using his own email address and mobile telephone number.

4.  On 6 June 2019, two parcels that were addressed to the applicant were delivered to him at Jumpstart.  The parcels had originated from Malaysia.  Staff at Jumpstart contacted the Customs and Excise Department and requested a customs check on the two parcels.  Customs officers attended Jumpstart and examined the parcels.  They found that each parcel contained, under a layer of miscellaneous food products, six paper boxes labelled as a coffee product which had been opened and re-sealed.  Inside each box were six tin foil packets containing ketamine.  The total street value of the ketamine was $1,754,970.

5.  At the direction of the Customs officers, staff at Jumpstart emailed the applicant that the two parcels addressed to him had arrived and were ready for collection.  Later in the evening of that day, the applicant arrived at Jumpstart and asked to collect the two parcels.  A Customs officer who was posing as a member of staff at Jumpstart handed over the two parcels to the applicant after checking his identity card and Jumpstart customer card.  Upon the applicant acknowledging receipt and leaving with the parcels, the Customs officer arrested and cautioned him.  The applicant said his friend “Fei See” introduced a man to him about 3 months previously and that the man had told him to open an account with Jumpstart, which he did.  He was then told to collect the parcels on the day in question.  He was to receive a reward of $20,000 for opening the Jumpstart account and collecting the parcels, which he had not received.  He said he thought the parcels contained prohibited weapons.[1]

6.  The applicant was found to be in possession of a Jumpstart Business Centre customer card and a mobile telephone containing a Micro SD card together with a SIM card with the number 6379 9299.  An examination of the applicant’s mobile telephone revealed WhatsApp text and voice messages between his mobile telephone using the number 6379 9299 and telephone numbers 6541 9729 and 5265 5627.  There were also calls between the applicant’s mobile telephone and the mobile telephone numbers 5265 5627 and 9617 1620 during the material times.

7.  A preliminary enquiry was made of the applicant by the Customs officers and he agreed to participate in a controlled delivery.[2]  He told the Customs officers that he was to pass the parcels to a man whom he had not met before and only had his mobile telephone number.  The applicant was driven to Mongkok park where the delivery of the parcels was to take place.  In the presence of the Customs officers, the applicant made a number of telephone conversations with the contact person.  The contact person asked the applicant what he was doing and whether there were any “ghosts”.  He also asked the applicant to show the environment to him by turning on the camera of the mobile telephone.  The last call was made by the applicant with the contact person telling him that he would find him a lawyer and saying “bye”.[3] It was clear that the contact person became suspicious and hence the operation was called off.

8.  In a subsequent video recorded interview, the applicant confirmed what he had said under caution and in the preliminary enquiry.  Although the applicant did not give evidence or call evidence on his behalf, he contested the account given by the Customs officers.  He alleged that he did not make the statements under caution as claimed, nor did he give the answers and telephone numbers in the preliminary enquiry form.[4]  He did say, however, he believed the parcels contained prohibited weapons but this answer had been forced out of him by the Customs officers.  He further alleged that he told the Customs officers that he was to receive $20,000 for opening the account and collecting parcels 3 to 4 times a month, and that it was just like doing a job. He alleged he was woken up for the interview and was tired and sleepy, and that the Customs officers instructed him how to answer the questions.[5]  The Customs officers in their evidence denied these allegations.

9.  The call records and the messages in relation to the applicant’s mobile telephone were adduced into evidence by way of admitted facts.[6] The applicant did not challenge the accuracy of what was heard by the Customs officer of the telephone conversations between him and the contact person during the controlled delivery operation.  The Customs officer was able to hear the conversations because the telephone was on speaker mode.

The grounds of appeal

10.  Mr Bernard Yuen, who represented the applicant at trial and in this application, advances five grounds of appeal.  Ground 1 complains that the judge erred in allowing evidence to be adduced in relation to the controlled delivery operation to prove the applicant’s “guilty knowledge and trafficking of dangerous drugs”.  Ground 2 avers that the judge, having wrongfully admitted the controlled delivery operation evidence, failed to adequately warn the jury of the danger of relying on such evidence to prove the offence against applicant.  As an adjunct to this ground it is complained that the prejudicial effect of the controlled delivery operation evidence outweighed its probative value so that no weight or reliance should have been placed on it.  Ground 3 complains that the finding of the applicant “having guilty knowledge and having trafficked in dangerous drugs” by the jury was prejudicial and unfair to the applicant as such finding might have been tainted and unduly influenced by the controlled delivery operation evidence.  Ground 4 complains that the finding of the applicant “having guilty knowledge and having trafficked in dangerous drugs” by the jury was not supported by any clear or sufficient evidence adduced by the prosecution.  Ground 5 avers that the conviction of the applicant was unsafe and unsatisfactory.

The controlled delivery operation

11.  The first three grounds concern the alleged unfairness and prejudicial effect caused by the admission of the controlled delivery operation evidence to establish the applicant’s guilty knowledge without adequate warning by the judge, thereby resulting in the conviction being unsafe and unsatisfactory.

12.  Ms Claudia Ng, for the respondent, submits that the applicant’s complaint that the controlled delivery operation evidence was improperly before the jury, is based on a misunderstanding of the evidence and a misconception of the law.  The applicant’s involvement in the controlled delivery operation was relevant evidence concerning his contact and communications with the person who was to receive the parcels he had collected and was reinforced by call records and text messages that were adduced into evidence by way of admitted facts.  The evidence was properly before the jury to consider together with all the other evidence.  She argues that the difficulty with Mr Yuen’s submission is that there was no evidence from the applicant and what had been put to the Customs officers by the defence had been denied.

13.  The prosecution case was that the applicant collected the two parcels knowing that they contained dangerous drugs and that this had been established by a consideration of the evidence as a whole, and not limited, as submitted by Mr Yuen, to the applicant’s involvement in the controlled delivery operation.[7]

14.  A key component of Mr Yuen’s submission relies on the Court of Appeal’s decision in HKSAR v Choi Chi Tak [2021] 1 HKLRD 1340 for the proposition that evidence in respect of a controlled delivery operation is inadmissible.  This argument was submitted to the judge at trial and rejected.[8] Mr Yuen essentially repeats the argument before me.  He accepts that the Court in Choi Chi Tak did not hold as a matter of principle that evidence of a controlled delivery operation was inadmissible per se.  He fashions his argument on the Court’s observations in that case that during a controlled delivery the applicant is required to follow the instructions of Customs officers and it would be unfair to rely on such evidence.

15.  On this issue, Mr Yuen advocates that the controlled delivery operation evidence should not have been adduced into evidence because: (1)  it was unfair and illogical to infer the applicant’s guilty knowledge from his words and responses during the controlled delivery operation; (2)  words, acts and responses by the applicant during the controlled delivery operation were tightly controlled or even instructed by the Customs officer; (3)  it was unfair for Customs officers to lead the applicant into participation of a controlled delivery operation to assist them in their investigation and subsequently use the applicant’s words and responses to infer guilty knowledge, which amounted to entrapment; and (4)  it was unfair, unsafe and prejudicial to rely on the applicant’s responses when what was said by the other person was not accepted or established as true.

16.  Mr Yuen raised this issue before the judge, who incorporated the defence position in her summing-up to the jury in the following terms:[9]

“The defence said that the mere fact the defendant was willing to take part in a controlled delivery operation in the Mongkok park, on its own does not infer guilty knowledge. And given that it was controlled, in the sense of under the instructions of Customs officers, how he responded with his answers, or his failure to respond, should not be used to draw any adverse inference against him.”

17.  The judge returned to the issue concerning the evidence in relation to controlled delivery operation and explained to the jury how they should approach it:[10]

“It was not disputed that there was such conversations during the controlled delivery operation. The prosecution does not seek to rely on the truth of what the caller or the other party said during those conversations. Rather, they relied on what this defendant said in response to show that he had knowledge, especially when the defendant said in the last call, which was made by him to the other person that there was no reason for him to carry the goods and walk around with those goods.

  Members of the jury, when deciding the weight to attach to what the defendant said to the other party during the controlled delivery, do bear in mind that he was in the company of, and indeed, under the instructions of Customs officers and he might not be as free to respond in a way which otherwise would have been had he not been so monitored.” 

18.  The judge clearly had the case of Choi Chi Tak in mind by her remarks to the jury.  Mr Yuen complains that this was not enough, although he concedes that he made no submission to the judge or raise any objection about her summing-up to the jury on this issue.

19.  It is necessary to consider Choi Chi Tak. It was a case where the applicant had received a parcel containing drugs that had been sent from Thailand to Hong Kong.  After the applicant had received the parcel, he agreed to participate in a controlled delivery operation.  It was not in dispute that after the applicant was arrested, a person named “Chung Loi” called him several times to inquire about the situation and to instruct him regarding the handing over of the parcel to a contact person.  “Chung Loi” warned the applicant that “it is dangerous even just holding the things on the street” and the contact person said that it was inconvenient for him to collect the goods from the applicant at the original location intended as police vehicles were parked nearby.  In arguing that the applicant had knowledge of the dangerous drugs, the prosecution referred to his previous work relationship with “Chung Loi” and suggested that he had previously trafficked in a dangerous drug for him, and also relied on what “Chung Loi” and the contact person had told the applicant during the controlled delivery.  The prosecution also relied on the applicant’s telephone records and frequent contact he had both for and after his arrest with “Chung Loi”.

20.  The Court of Appeal allowed the appeal because of the manner in which the case had been advanced against the applicant, including reliance by the prosecution on the controlled delivery operation evidence.  On this issue the Court said:

“44. Mr Eric Cheung pointed out that during the controlled delivery, the applicant was required to follow the instructions of the Customs Officers in having conversations and might not respond according to his own state of mind and perception, and therefore it was indeed unfair to the applicant for the prosecution to emphasise such conversations. For instance, even if the applicant wanted to raise a question upon hearing ‘Chung Loi’ mention that ‘it’s dangerous to hold the things on the streets’ or wished to clarify with ‘Chung Loi’ what was being referred to as ‘dangerous’, given the passive role he was playing at that time, there was no way for him to make enquiries.

  45.   This Court agrees with Mr Eric Cheung’s observation.  If the jury took into account the applicant’s response and conduct during the controlled delivery, or to put it more accurately, the applicant’s failure to respond or act, such as his failure to raise queries with ‘Chung Loi’ or the recipient of the goods, or to indicate that he did not understand something and so on, and as a result drew an adverse inference against the applicant, is apparently unfair to the applicant.”

21.  The Court allowed the applicant’s appeal on this and other grounds. 

22.  Ms Ng, in her customary thorough submissions, argues that Choi Chi Tak did not establish as a general principle that whatever took place during a controlled delivery was inadmissible per se.  She submits it will depend upon the circumstances of the case and how the evidence of the controlled delivery was relied upon by the parties.  She further submits that Choi Chi Tak can be distinguished from the present case.  Finally, she makes the point that the judge did address the issue in an appropriate and adequate manner and the applicant has no cause for complaint.

23.  Whilst Ms Ng advances a number of valid points, I am nevertheless satisfied that there is a reasonable argument as to whether Choi Chi Tak has laid down a statement principle in relation to the admissibility and use of evidence in respect of a controlled delivery operation, and if it did, the precise terms of such a principle and whether it applied to the particular facts and circumstances of this case. 

Insufficient evidence for a conviction

24.  In the fourth ground it is complained that there was insufficient circumstantial evidence to draw an inference of guilt against the applicant.  As pointed out by Ms Ng, the following evidence was established as part of the prosecution case:

(i)  The applicant opened a virtual office account at Jumpstart.

(ii)  The applicant asked the contact person in messages what he should fill, in respect of the company name and address on the form to open the Jumpstart account.  As submitted by prosecuting counsel in his closing address:[11]

“Now, what do these messages actually show? Well, the prosecution will say that they show that the defendant was being asked to open an account with Jumpstart. What they don’t show, though, is why. There is no messages by the defendant asking why he needed to open an account. They also show messages in regard to collecting a parcel. There are no messages by the defendant asking about what would be in the parcels he was to collect. This was not asked because I would suggest it was not necessary. The defendant already knew the answer. It would have been discussed with the parties outside of these messages.”

(iii)  Text and voice messages between the applicant and contact person prior to the picking of the parcels showed the on-going arrangement made in preparation to pick up the parcels in return for a monetary reward, for example, whether he had a telephone to open a ghost card for doing the job, he expressing an interest in doing the job long term though he knew some drug stores likes to play a while and stop.[12]

(iv)  Upon receipt of the email about the arrival of the parcels, the applicant attended Jumpstart’s office and collected the parcels.  Prosecuting counsel noted in his closing address the messages between the applicant and his contact at this stage:[13]

“And then the next message he gets at 314, ‘Let me know when you set off, yes?’ So it would appear, I would suggest, members of the jury, between messages 313 and 314 there has been some communication by which the person knows that the defendant is going to go to pick up the parcel. And the defendant replies at 315, ‘Hey, I’m on the way. On the way, yes.’ And he’s told, ‘Wish you safe and sound, be careful.’ And the defendant replies, ‘Got it, got it, got it,’ at 317. That is not that he’s got the parcel, but he’s got the message to be careful and safe. Again at 318, ‘Let me know when you got there, yes?’ And at 319, this is at 11 minutes past 6, just a few minutes before he arrives at Jumpstart, ‘Almost, almost, almost.’ And that’s replied, ‘Okay.’

That then comes us to the events that then transpired in the controlled delivery operation later after he’d been arrested. And we’ve heard the evidence that it would appear that unfortunately the other party realised that something had gone wrong. You’ve heard from Officer 18413 and the telephone calls that he could hear coming in or with the defendant was that -- asking about ghosts, asking to use the video camera to show the environment. Now, obviously, members of the jury, there’s a specific reason for that, asking about ghosts and wanting to see the environment. They want to see whether it’s safe for someone to come and collect the parcel.

  And, finally, in a slightly chilling way in a way, for the defendant that is, saying, ‘We’ll find a lawyer for you, goodbye.’  ‘Goodbye’ sounds very final.  And with that the customs officers knew that no one would be coming. …”

(v)  The telephone showing the above messages and emails were in the applicant’s possession upon arrest.

(vi)  The applicant told the Customs officers that he was to pass the parcels to an unknown male in return for $20,000.

(vii)  The street value of the drugs was $1.75 million.

25.  In my view, there was sufficient circumstantial evidence for the jury to properly draw an irresistible inference of guilt against the applicant.  I am therefore not persuaded that this ground is reasonably arguable.

Unsafe and unsatisfactory conviction

26.  I am also of the view that the fifth ground that the conviction of the applicant was unsafe and unsatisfactory is not sustainable and leave is therefore refused.

Conclusion

27.  As I have indicated, I am prepared to grant the applicant leave to appeal his conviction on the narrow ground, which is a composite of Grounds 1 to 3, as to whether the evidence of an accused’s involvement in a controlled delivery operation should be subject to any condition or restriction in light of Choi Chi Tak if sought to be adduced into evidence and whether any special warning or guidance should be given to the jury in its approach of such evidence if admitted.  It follows that whatever is decided by the Court of Appeal in respect of this issue should be considered in the circumstances of the present case. 

28.  I do not find the rest of the grounds of appeal reasonably arguable and on those grounds I refuse leave.  In respect of these refused grounds, the applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also informed that the Court has the power to order the loss of any time he has spent in custody pending his appeal, if it were to conclude that there was no justification for renewal in the application in relation to those grounds.