HKSAR v. LAM WAI CHOI

FAMC No. 24 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 28 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Bokhary, PJ:

1. On 23 December 1997 this applicant was convicted by a jury on one count of trafficking in dangerous drugs, and sentenced by Deputy Judge Hartmann (as he then was) to 19 years' imprisonment.

2. He went to the Court of Appeal asking that his conviction be quashed or at least that his sentence be reduced. By its judgment delivered on 8 September 1998, that court (Power VP and Rogers and Stuart-Moore JJA) refused to disturb either his conviction or his sentence.

3. On 30 October 1998 he was back before that court, asking it to certify the involvement of a point of law of great and general importance. The Court of Appeal refused so to certify.

4. Now the applicant is before this Committee, asking us to certify the involvement of such a point of law, and to grant him leave to appeal against conviction to the Court of Final Appeal on two bases: (i) that point of law; and (ii) a reasonably arguable case of substantial and grave injustice having been done.

5. Since this application for leave to appeal to the Court of Final Appeal was not made within 28 days from the date of the Court of Appeal's decision (as s.33(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, prescribes), the applicant also seeks (pursuant to subsection (2) of that section) an extension of time for seeking such leave.

6. In his written application to us, the applicant sets out this question as one which raises the point of law which he asks us to certify:

"Should a trial judge's response to a written jury question (expressed in "term of acquittal") include references to a new basis for guilty knowledge that had not been relied upon or been investigated in evidence during the trial?"

7. And in that written application the substantial and grave injustice of which he complains is expressed thus:

"That since the prosecution had specifically elected not to rely on the statutory presumptions available in drugs cases and not to cross examine the accused as to any 'suspicion' or 'blindness' and the 'new basis' was not introduced until after the jury had retired, the applicant was deprived of any opportunity to deal with the matter and lost a reasonable chance of acquittal which would have followed a proper direction even if the jury were unable to reach a majority verdict (this being the applicant's third jury trial on the same charges)."

8. To understand the point advanced and the complaint made, it is necessary to turn to the circumstances of the case.

9. The particulars of the count on which the applicant was convicted were that he, on 26 January 1994 outside a flat on the 8th floor of a building in Ngau Tau Kok, trafficked in dangerous drugs consisting of 8,008.49 gms of a mixture containing 7,045.12 gms of salts of esters of morphine.

10. A helpful outline of the facts relied upon by the prosecution is contained in this passage in the Court of Appeal's judgment delivered by Power VP:

" It was the prosecution case that at about 5:25 a.m. on [the day in question], the applicant, with another man, approached the door of [the flat]. He was seen by a surveillance team to unlock the iron grille and both men then entered the flat. Shortly thereafter, both men were seen to leave the flat. They were stopped by the police and a paper bag was taken from the applicant which contained the dangerous drugs the subject of the charge. He attempted to flee but was restrained. He was then arrested and cautioned and said in reply to the caution, "Ah Sir, the bag of white powder is not mine. Somebody told me to come to collect it." This statement was shortly thereafter post-recorded and the post-recording was signed by the applicant."

11. The Court of Appeal then gave this helpful outline of the defence case:

" The applicant gave evidence saying that Chan Fei, a friend, had lent him the flat for one night and had also lent him a car. He said that Chan had asked him to put a bag of gifts in the car and that this was what he was doing when he was arrested. He denied any knowledge of the contents of the bag and said that he had made his reply to the caution because the police had already mentioned white powder to him."

12. The crucial issue was therefore knowledge. Shortly stated the prosecution's case in this regard ran thus. The flat was sparsely furnished and had a large quantity of dangerous drugs in it. It was fanciful to think that an innocent dupe would be allowed into the flat let alone given the keys to it. It was likewise fanciful that an innocent dupe would be entrusted with dangerous drugs of the nature and quantity found in the applicant's possession. In those circumstances the only reasonable inferences were that the applicant knew the nature of what he was carrying, did so as a knowing courier, and was therefore trafficking in the dangerous drugs which he was carrying.

13. After two hours' retirement, the jury sent a note to the judge asking him:

"Should the defendant be acquitted if I believe that upon sight of the carrier bag he had suspected that it contained dangerous drugs (but he is not sure) as he was not informed in advance by Chan Fei of its contents?"

14. The judge informed counsel of the question, heard them as to what the appropriate answer ought to be, and then brought the jury back and gave them this answer in open court:

" Members of the jury, in answer to your question, you must be aware that suspicion is not enough. To convict the accused, you must be sure that he knew that the bag contained dangerous drugs. If you are not sure that he knew, then you must acquit him. There may be many factors, if you find them proved, which help you to decide whether or not you can be sure that the accused knew. One such factor may, depending on the facts as you find them proved, be that he deliberately closed his eyes to his existing suspicion. But, in the circumstances, you would then have to be sure that he deliberately closed his eyes to his suspicions, because, in fact, and in truth, he already knew and was simply avoiding obtaining the confirmation which he neither wanted nor needed. In summary, you must, on the evidence as you find it, as the sole judges of the facts, be sure that he knew of the existence of the drugs. Unless you are so sure, you must acquit the accused."

15. Whether or not answering the jury's question with a simple "yes" was an option, the judge would have had the "feel" of the case and been best placed to decide whether a fuller answer was desirable.

16. As for the answer which he did give, we are of the view that, contrary to the argument urged on the applicant's behalf, the direction embodied in that answer is plainly a proper one in the circumstances. It adhered to the need for actual knowledge. The judge properly explained that need when he told the jury that they would have to be sure that "in

fact, and in truth", the applicant "already knew and was simply avoiding obtaining the confirmation which he neither wanted nor needed".

17. Accordingly it is plain that the point of law which we are asked to certify is not involved, and that the injustice asserted did not arise. It would therefore be pointless to extend time: since the application, if it could be made, is bound to fail.

18. In the result: time is not extended; we do not certify any point of law; and we do not give leave to appeal.