HKSAR v. HO PAK HONG

CACC 153 /2019

[2022] HKCA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 153 OF 2019

(ON APPEAL FROM HCCC NOS 244 OF 2017 AND 235 OF 2018

(CONSOLIDATED))

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JUDGMENT AND REASONS FOR JUDGMENT

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

1.  The applicant faced trial in the High Court before D’Almada Remedios J (“the judge”) and a jury on two counts of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Both offences were alleged to have taken place on 17 November 2016 at Ka Hay Building, 19 Tseng Choi Street, Tuen Mun, New Territories (“the building”).

2.  Count 1 concerned 426 grammes of ketamine narcotic kept in various sling bags found inside Room A3 (“Room A3”) on 14/F of the building, to which access was gained by police officers with keys found on the applicant. Count 2 concerned 373 grammes of ketamine narcotic found separately in the possession of one Cheung Chi-ho (“Cheung”), who was intercepted for a police search as he emerged from the building. It was averred that the joint act of trafficking constituting Count 2 took place on 12/F of the Building, from where Cheung had collected the drugs. However, it will be noted that, chronologically, Count 2 preceded Count 1.

3.  The applicant was convicted of both counts on 6 May 2019 and, on the following day, sentenced to a total term of 14 years’ imprisonment. He subsequently applied for leave to appeal against both conviction and sentence, which applications were refused by a Single Judge[1] after a full hearing, on 19 November 2020.

4.  By a notice of renewal of leave to appeal, the applicant has sought to renew both applications for leave before the Court of Appeal but only on two grounds in respect of conviction; the second of which is a new ground altogether. At the hearing of this application, we refused the application for leave to appeal against conviction and said we would give our reasons for doing so in due course. However, we reserved judgment on the application for leave to appeal against sentence. These are our reasons for dismissing the application for leave to appeal against conviction and our decision in respect of the renewed application for leave to appeal against sentence.

The prosecution case

5.  On 17 November 2016, the police mounted an anti-dangerous drugs operation in Tuen Mun. At that time, they had tailed Cheung, a 15-year-old school pupil from Tai Hing Estate to the building, which he was seen to enter empty-handed. Shortly afterwards, he emerged from the building, but this time holding a “Watsons” plastic bag.

6.  As he was about to board a taxi, Cheung was intercepted by police officers. On conducting a search of Cheung, they found, inside the “Watsons” bag, a total of four sling bags with the brand name “Glad”. These sling bags, which had yellow and green rims at their openings, contained 1 kilogramme of a powder containing 373 grammes of ketamine (the subject-matter of Count 2), and two pieces of paper with telephone numbers and locations written thereon in a numbered sequence (Exhibits P4 and P5). The ketamine had an estimated value of HK$132,700.

7.  Under caution, Cheung revealed that he had just obtained the ketamine from his “boss”, whom he later identified as the applicant, on 12/F of the building. Cheung said he did not know the applicant by name but was able to produce and show the police his photograph on his mobile telephone.

8.  Having arrested Cheung, the officers continued to lay ambush outside the building. A short while later, they intercepted the applicant and his girlfriend, Yau Choi-yi (“Ms Yau”) as they emerged from the building. Both the applicant and Ms Yau were subsequently escorted to Room A3 for further investigation. The applicant possessed keys to Room A3, but was reluctant to open the door. Under the supervision of a Chief Inspector, the officers used his keys to gain entry to Room A3.

9.  Inside Room A3, on a bed, the officers found a total of 1,654.30 grammes of a powder containing 426 grammes of ketamine (the subject-matter of Count 1) in five “Glad” sling bags, also with green and yellow rims at their openings; and, in a cabinet underneath the bed, two other “Glad” sling bags with red rims were discovered. The estimated value of the ketamine in Room A3 was HK$151,656.

10.  Under caution, the applicant said: “I only wanted to earn some money, so I hid the ‘K-Chai’ there for someone.” When his request to see Ms Yau was refused, he pushed the arresting officer and threw one of the sling bags out of a window. That particular sling bag was eventually retrieved from the podium of the building. Accordingly, the applicant was also arrested for obstructing a police officer in the due execution of his duty.

11.  The applicant participated in a video recorded interview (“VRI”), the admissibility of which was contested at trial. During the VRI, he claimed that he had hidden the ketamine for a friend “Ah Chun”, who had given him instructions to rent Room A3 for that purpose. He had previously collected the drugs from Mong Kok, also on Ah Chun’s instructions. He said he was the only person with access to Room A3 and that Ms Yau had nothing to do with any of the ketamine inside the room. However, he refused to speak about Cheung, or his relationship with him.

12.  There was no challenge to the information extracted from the mobile telephones of the applicant and Cheung, including conversation records between the two from 8 November 2016 up to the time of their arrests (Exhibits P23A and P24A). Further, the applicant’s telephone records (Exhibit D3) revealed that in the afternoon of 17 November 2016, he had made four outgoing calls to four numbers, which were identical to those written on Exhibits P4 and P5 found in Cheung’s possession.

13.  The tenancy agreement for Room A3 was in the name of Ms Yau, who testified for the prosecution at trial. She was 21 years of age at the time of the applicant’s arrest and had been dating him for two months. She had rented Room A3 at the applicant’s request shortly before his arrest, since he was not yet 18 years of age. The rent was paid by the applicant and she was never given the keys to Room A3. The two of them were yet to move into Room A3, since the applicant said he wanted to make some improvements to it first. Under cross-examination, she denied that she was running a business at Room A3, or that she had asked the applicant to arrange for the delivery of dangerous drugs. She conceded that she had been charged together with the appellant in the present case but said that her case had been dropped by the prosecution. She denied acting in concert with the police so as to set up the applicant for the present offences. She was also able to recognise the applicant’s handwriting on Exhibits P4 and P5.

14.  It was an admitted fact that Cheung had been charged[2] with trafficking in the same batch of ketamine as particularised in Count 2 in the present proceedings, that he had pleaded guilty to the offence on 28 February 2018, and that he had been sentenced to 5 years and 8 months’ imprisonment on 6 March 2018. In also testifying for the prosecution, Cheung said that he had met the applicant through the introduction of a friend. He wanted to make some money by delivering things to the applicant’s clients. He only knew the applicant as “boss” and they would contact each other by telephone and WhatsApp messaging. On the day of his arrest, he had collected the ketamine from the applicant on 12/F, at which time he was instructed to deliver it to the buyers written on Exhibits P4 and P5. He conceded that he hoped to receive a substantial reduction in his sentence by testifying against the applicant.

The defence case

15.  The applicant did not testify on the general issue but called his grandmother as his only witness. His defence was a denial of any involvement with, or knowledge of, the two batches of ketamine in the two counts. In particular, it was alleged that there had been collusion between the police, Ms Yau and Cheung in falsely accusing him of the present offences for their own interests. It was his case that the ketamine in Count 1 had been planted in Room A3 by the police, whilst he accepted that he had given the “Watsons” bag in Count 2 to Cheung, but contended that he had received it from Ms Yau and did not know that it contained ketamine. His case was that Ms Yau was a drug trafficker and the applicant had been innocently duped by her into passing the bag of ketamine to Cheung.

16.  It was denied that the applicant had made any admissions inside Room A3 and it was suggested that he had been coached and had answered questions in the VRI as a result of prior assault, inducement and threat by the police.

17.  The applicant’s grandmother testified that both the applicant and Ms Yau were taken back to the applicant’s home in Choi Hung following their arrest, where she saw the applicant smoke a cigarette and talk with Ms Yau.

Mitigation

18.  The applicant was 19 years of age at the time of the sentencing and had two previous convictions: firstly, handling stolen goods, in April 2013; secondly, possession of dangerous drugs, in December 2016^[3].

19.  At the time of the present offence, the applicant was 17 years and 3 months of age. It was submitted on his behalf in mitigation that since he was himself a “minor” for the purposes of section 56A of the Dangerous Drugs Ordinance, Cap 134, which concerned the enhancement of sentence for a drug trafficker who made use of a minor to traffic in dangerous drugs, the section should not apply to him. Nevertheless, it was accepted that the applicant’s recruitment of another to deliver drugs was an aggravating factor and demonstrated that he was higher up the trafficking chain of command.

20.  The judge was invited to treat both offences as a single transaction of trafficking in a total quantity of 799 grammes of ketamine narcotic, which would warrant a notional starting point of somewhere between 12 and 14 years’ imprisonment.

Sentence

21.  The judge considered, notwithstanding the applicant was only about two years older than Cheung, that he was still the recruiter of a young male. Having been able to see and hear Cheung’s evidence before the jury, and the applicant’s evidence before her on the voire dire, she took the view that the applicant was “very much more mature” than Cheung[4].

22.  The judge combined the amount of ketamine seized in both charges and adopted an overall starting point of 13 years’ imprisonment, in accordance with the guidelines in HKSAR v Hii Siew Cheng^[5]. Having considered the principles set out in HKSAR v Abdallah^[6], she enhanced the starting point by one year to reflect what the Court had said about recruiting a “young person to assist in the trafficking”[7]. The judge then considered the appropriate sentence on each individual count so as to arrive at her objective. In respect of Count 1, she sentenced the applicant to 10 years and 3 months’ imprisonment^[8], while on Count 2, she sentenced him to 9½ years’ imprisonment^[9], which sentence was then enhanced by one year for his use of a young person to traffic dangerous drugs, resulting in a sentence of 10½ years’ imprisonment. Looking at the totality of sentence, the judge considered that 3½ years of the sentence on Count 1 should run consecutively to the 10½ years on Count 2, thus arriving at an overall sentence of 14 years’ imprisonment.

The renewal application

23.  The applicant has relied on two grounds of appeal against conviction, one of which is a new ground of appeal, while the other could be said to have been recast from the issues addressed at the application before the Single Judge. On 19 April 2021, I allowed him to advance the present applications as his new grounds of appeal.

24.  The first ground avers that the jury had been misled, and the trial consequently rendered unfair, because of the prosecution’s non-disclosure of the fact that fingerprint examinations had in fact been conducted in respect of Room A3 and the plastic bags containing the drugs, which resulted in the agreed admitted facts being materially inaccurate.

25.  In the leave application, the Single Judge had raised certain concerns about the outcome of the police fingerprint investigations. In response to those concerns, the respondent, having conducted further enquiries with the police, confirmed that an analysis had in fact been carried out on the fingerprint found on the inside of the wooden door of Room A3, but the fingerprint expert considered that since the depositor could not be identified, the print would be classified as an “outstanding mark” and, as such, would continue to be checked against the police database on a regular basis. As for the plastic bags containing the drugs, they were also examined for fingerprints but “there was no mark of value found on the exhibit(s) submitted”; in other words, a mark was found but it did not have sufficient fingerprint characteristics to enable a positive identification to be made.

26.  It thus became clear that the 2^nd set of admitted facts, dated 29 April 2019, were inaccurate or incomplete in reporting, firstly, that a fingerprint examination was not carried out in respect of the fingerprint lifted from inside Room A3; and secondly, that all the plastic bags containing the drugs were examined for fingerprints but they ultimately yielded no positive results.

27.  Subsequently, in an affirmation dated 7 February 2021, the applicant raised a further ground of appeal to the effect that since one of the police witnesses at trial was subsequently convicted of various sexual assaults on underage girls and sentenced accordingly, there were doubts about his evidence, which thereby prejudiced the fairness of his trial^[10].

28.  The applicant did not file any grounds of appeal in respect of his application for leave to appeal against sentence.

The respondent’s submissions

Conviction

29.  Ms Claudia Ng, for the respondent, opposed the present application. In relation to the first complaint, she submitted that the fingerprint examination results were not brought to the attention of either counsel at trial, but that was through inadvertence, not bad faith. However, since the applicant’s defence and his answers in the VRI were that he had given the bag to Cheung and that he himself occupied Room 3A, the presence or the absence of his own fingerprints did not assist the prosecution or the defence in advancing their respective cases. Since such non-disclosure had no bearing on the issues at the trial, it could not have misled the jury or prejudiced the applicant in any way.

30.  In response to the second complaint, Ms Ng has confirmed that the police officer concerned, namely PW8, was involved in a sexual case involving underage girls, and had been remanded in custody pending the taking of his plea at the time of the applicant’s trial. However, the facts of that case did not suggest that the officer had abused his position or office as a serving police officer in order to obtain sexual favours from the victims. Consequently, the officer’s conduct in that case had nothing to do with his integrity and role as an exhibits officer in the present case. Moreover, the prosecution had fully disclosed the details of PW8’s case and his interdicted status to the defence prior to the applicant’s trial, yet defence counsel chose not to touch on these matters in cross-examination. Therefore, the mere fact that the officer was an accused in another case did not undermine his evidence or impugn his integrity as an exhibits officer in the applicant’s case; nor could it be said to have affected the fairness of the applicant’s trial.

Sentence

31.  In respect of the applicant’s sentence, Ms Ng submitted that, given the background of the case, the initial starting point of 13 years’ imprisonment after trial, the 1-year enhancement for recruiting a young person, and the judge’s application of the totality principle were all unassailable. The ultimate sentence of 14 years’ imprisonment was within the appropriate range given the applicant’s culpability and the aggravating features present.

Discussion

Conviction

32.  It is regrettable that the admitted facts agreed by the parties were not in fact accurate, although we are informed, and accept, that it was a bona fide mistake borne of inadvertent non-disclosure, rather than anything more deliberate. Nevertheless, we desire to say that we find it surprising that prosecuting counsel at trial did not conduct full inquiries into the matter so as to ensure that he had the complete picture in respect of the fingerprint examination before putting forward admitted facts which clearly, and rather unsatisfactorily, left matters in the air For, rather than no examination being carried out on the fingerprint which was lifted inside Room 3A on 14/F of Ka Hey Building (which was the actual admission)^[11], it is now clear that the fingerprint could not be identified but was classified as an outstanding fingerprint to be checked against the database on a continuing basis. However, we fail to see how the admitted fact as agreed prejudiced the applicant. No one ever suggested that the fingerprint belonged to the applicant. As for why his fingerprint was not found, but someone else’s was, on the door of the room to which he had access and admitted his connection, was hardly a very significant matter, given that the tenancy and his occupancy of the room were admitted and only commenced the day before his arrest.

33.  As for the plastic bags, rather than them being preserved for fingerprint analysis (which was the actual admission)^[12] with no results disclosed, there was a mark but it had insufficient characteristics to enable a valid identification to be made. This evidence was neither here nor there, even if it had been correctly and fully recited in the admitted facts.

34.  In neither case was the inaccuracy or incompleteness of the admitted fact at all prejudicial. In fact, defence counsel at trial was able to make a strong point in his closing address to the jury about the absence of any record or results from the fingerprint analysis of the plastic bags^[13]:

“So what was the purpose of submitting it to the advanced technology section laboratory of the Hong Kong Police if it’s not for fingerprint testing. That’s where the paper trail ends. No idea what happened to these plastic bags, apart from the fact that they ended up in court. No idea whether any fingerprint examination was done, so this is not a case where the bags were examined, no fingerprints were found. Then the prosecution can say, hey, maybe the defendant wiped it off.

In this case, these bags were submitted for examination, submitted to the advanced technology section laboratory of the police and we don’t know what happened. We don’t know whether any fingerprint examination was conducted. If it was conducted why is there no report? If it was not conducted why wasn’t it conducted? These are hard questions you have to think about.

But the point is when you see that items are preserved for fingerprint testing you expect some result, whether fingerprints were found, they were not found or there were insufficient characteristics for testing. It was tested. It can’t be matched with anyone. You expect some sort of results. When there are no results, alarm bells have to go off.”

Thus, the defence were able to use the absence of the report to suggest that the police may have been hiding something, or otherwise misconducting themselves, in relation to this evidence; in the context of a case in which the integrity of the police investigation was being impugned. In fact, as we now know, a mark was found on a plastic bag but it was insufficient for the purposes of a formal (and admissible) identification. Had this fact been known, defence counsel could not have made the forceful submission he did. We cannot see that the applicant was harmed by the absence of such a result: indeed, as the closing address of defence counsel made clear, the apparent and unsatisfactory ending of the paper trial was used to the applicant’s advantage, not disadvantage. As for the applicant being a “professional” who could have wiped off his fingerprints, which was, with respect, a rather unlikely and inappropriate suggestion made by prosecuting counsel in his closing address[14], the judge rightly told the jury simply to ignore the remark^[15]. There is no merit in this ground of appeal.

35.  As for the unconnected criminal conduct of the exhibits officer, PW8, the fact is that the defence were properly advised, before the commencement of the trial, that the officer in question was under interdiction for unrelated sexual offences, to which he later pleaded guilty and was sentenced to imprisonment. Defence counsel did not seek to use this information in cross-examining the officer concerned, who merited a single paragraph in the judge’s summing-up concerning what he did with the drugs upon receipt in sealing them in tamper-proof envelopes for onward transmission to the Government Chemist^[16]. Since his evidence was ultimately unimportant and uncontentious, we cannot see that there was any issue about the officer’s integrity, or his handling of the exhibits. Indeed, there was an admitted fact in relation to the chain of evidence concerning the drugs exhibits^[17]:

“The chain of evidence of all dangerous drug exhibits (namely exhibits P2, P9, P10 and P11) is intact and unbroken from the time they are sealed in Tamper Proof Envelopes to transport, storage, delivery to and from Government laboratory to storage and production in Court.”

There is nothing in this ground. Accordingly, for the above reasons, we refused leave to appeal and dismissed the appeal against conviction at the hearing of the appeal.

Sentence

36.  The starting point of 13 years’ imprisonment was arithmetically correct under the relevant guidelines in terms of the overall quantity, which the judge was right to regard on a concurrent basis, since the drugs in the possession of Cheung had clearly just come from the applicant and from the store in Room 3A.

37.  The question which merited us reserving the matter for further consideration, was whether the judge should have enhanced the sentence on the applicant for recruiting a minor when he himself was a minor. Section 56A of the Dangerous Drugs Ordinance reads, so far as it may be relevant:

“(1) Subject to subsection (5), where a person (other than a minor) has been convicted of a specified offence and –

(a) a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2); or

(b) any such information is agreed by the person,

then the court –

(i) shall have regard to such information when it passes a sentence on the person for the offence; and

(ii) may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such information, have passed.

(2) Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following –

(a) the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor for possession or otherwise by a person;

…”

38.  Although there is no definition of “minor” in the Dangerous Drugs Ordinance, the word is defined in section 3 of the Interpretation and General Clauses Ordinance, Cap 1 in the following way:

“infant (幼年人) and minor (未成年人) mean a person who has not attained the age of 18 years.”

Legally, at the time of the commission of the offence, the applicant was still a minor.

39.  Section 56A, which applies to adult offenders, means that a sentencing court shall have regard to information, duly established, that the offender has trafficked a dangerous drug to a minor, and may pass a more severe sentence accordingly. It does not mean that a court cannot consider enhancing a sentence where a minor recruits another minor to traffic in dangerous drugs. If that were the position, it would allow minors to recruit other minors as their couriers with relative impunity. In reality, there can be minors with very different ages and levels of maturity. Indeed, when addressing the applicant in sentencing, the judge made this very point[18]:

“Although you were only some two years older than him, it is clear to me that you were very much more mature than Cheung Chi-ho. I have observed Cheung Chi-ho give evidence and …, even some three years later, he does not appear to be a very mature man.”

The judge, of course, had the advantage of hearing Cheung testify on the general issue, and the applicant give evidence during the voire dire. Having listened to the applicant presenting his appeal, now at the age of 22, we were struck by his sharp and easy grasp of the points he was making and we were making to him. The applicant is clearly a very street-smart and articulate individual, who was capable of manipulating others at an early age. Apart from Cheung, he had inveigled his girlfriend Ms Yau, who, at 21 years of age, was some four years older than him, to enter the tenancy agreement for Room 3A, before turning on her at trial and alleging not only that she was the drug trafficker but that she had colluded with the police to set him up.

40.  The cold reality is that the applicant’s maturity belied his age. He was able to carry out a lucrative business in drug trafficking from premises he had caused his girlfriend to rent for him, through a schoolboy he had recruited to act as a courier for him. Even leaving aside the issue of Cheung’s young age, which we think was a relevant consideration for the judge to take into account under general principles, the applicant’s culpability was significantly greater than that of a courier or storekeeper, at whom the guidelines are aimed. In HKSAR v Herry Jane Yusuph[19], this Court attempted to classify the various categories of drug trafficker in ascending order which are more commonly encountered by the courts. The first category was the courier or storekeeper, while the second was the actual (or direct) trafficker. Of the third category, the Court said[20]:

“Above the defendant who is actually trafficking or disseminating drugs on the streets is the manager or organiser of those who are dealing in, or distributing, drugs on his behalf.”

Such a description would plainly apply to the applicant, even at 17 years and 3 months of age. He was no mere storekeeper, for he had himself arranged the storage facility from which to operate: and he was no mere courier, for he had recruited others to distribute the drugs for him. In our view, the judge’s enhanced starting point, given the applicant’s significant role and culpability, more than justified a sentence of 14 years’ imprisonment for the quantity concerned, even without a consideration of the age of the person he had engaged to distribute the drugs.

41.  Accordingly, the sentence passed on the applicant cannot be said to be either manifestly excessive or wrong in principle. Whilst we grant leave on the point he has advanced, the appeal against sentence is dismissed.

[1] McWalters JA.

[2] In HCCC 245/2017.

[3] He was sentenced to be detained in a DATC on 30 December 2016, which was after his arrest in the present case.

[4] AB, p 145D-E.

[5] HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1. Arithmetically, the starting point for 799 grammes of ketamine would be 12 years and 11.94 months’ imprisonment.

[6] HKSAR v Abdallah [2009] 2 HKLRD 437.

[7] Ibid., at [42]; AB p 145R-T

[8] Arithmetically, the starting point for 426 grammes of ketamine would be 10 years and 3 months’ imprisonment.

[9] Arithmetically, the starting point for 373 grammes of ketamine would be 9 years and 8 months’ imprisonment.

[10] The officer concerned (PW8) was one of the exhibits officers at scene. He subsequently pleaded guilty in the District Court to eight charges of sexual offences against underage girls. Upon a successful review of his sentence by the Secretary for Justice, his sentence was increased to 5 years and 8 months’ imprisonment by the Court of Appeal, but reduced to 5 years’ imprisonment, given that it was a review application and the respondent would have to return to prison to serve out his remaining sentence: see Secretary for Justice v Yu Chun Hing [2021] HKCA 1033 (Unrep., 10 December 2021).

[11] Appeal Bundle (“AB”), 2^nd set of admitted facts, p 13, at [3].

[12] AB, 2^nd set of admitted facts, p 13, at [5], [6] and [7].

[13] AB, p 192H-Q.

[14] AB, p 178K-M.

[15] AB, p 35L-M.

[16] AB, p 59B-I.

[17] AB, 1^st set of admitted facts, p 9, at [1].

[18] AB, p 145D-F.

[19] HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

[20] Ibid., at [65]