HKSAR v. HUI LAP KEI

CACC 230/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 230 OF 1999

(ON APPEAL FROM HCCC 284/1998)

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J U D G M E N T

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

1. The applicant was convicted of two counts of trafficking in a dangerous drug after a trial before Mrs Justice Bokhary and a jury. He now seeks leave to appeal against his convictions.

2. The charges read:

"First Count

STATEMENT OF OFFENCE

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

HUI Lap-kei, on the 10th day of June, 1998, at the Ground Floor, No. 40, Tam Kung Road, Tokwawan, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 2,808.79 grammes of a mixture containing 2,408.16 grammes of heroin hydrochloride.

Second Count

STATEMENT OF OFFENCE

Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

HUI Lap-kei, on the 10th day of June, 1998, at Room 728, Block 5, Lower Ngau Tau Kok Estate, Kwun Tong, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 28.69 grammes of a mixture containing 23.26 grammes of heroin hydrochloride."

3. The prosecution case against the applicant was a strong one.

4. It was accepted by the applicant that he was in possession of the bag containing the dangerous drugs referred to in the first charge at the time when he was approached by the police officers.

5. The officers gave evidence that the applicant said when he was apprehended "Ah Sir, I am aware of being caught for sure." He went on to say "I know that these things are not mine. Somebody gave me $2,000 and asked me to help to get. I also have something at home - a very small quantity." Following this a search was undertaken at the applicant's residence and the dangerous drugs referred to in the second count were found at the location which had been indicated in the applicant's bedroom.

6. The applicant denied having made the admissions attributed to him. He claimed that he had only signed the post-recorded statements as a consequence of gross misconduct on the part of police officers who gave evidence.

7. The applicant gave evidence at his trial. He said that on the morning in question he had been picked up in a car by his friend Mr Lee Kam-leung who he had known to some three years. They were going to have tea together. Before going into the restaurant Mr Lee had given him the bag containing what he now knows were the dangerous drugs subject to the first count. Mr Lee had said that he was going to collect other friends to join them and that in the meantime the applicant was to look after the bag. Mr Lee would return later to retrieve it. It was subsequent to this that he had been approached by the police officers and the applicant said that he had no reason whatever to suspect that the bag contained anything untoward.

8. So far as the dangerous drugs in the second count were concerned Mr Lee had some days previously left the package with him saying that it contained CDs. He asked him to keep them for him and he had not given any thought to the matter.

9. It will be appreciated from this very brief summary of the case that the only issue for the determination by the jury was whether the prosecution had been able to prove at the appropriate level that the applicant had the requisite knowledge of the existence of the dangerous drugs the subject of the charges.

10. The first perfected ground of appeal is that:

"1. The Learned Judge erred in law in that she wrongly directed the jury that (in relation to both counts) they were entitled to speculate on the thoughts of the owner of the dangerous drugs.

Particulars

(a) The Learned Judge repeatedly directed the jury that they were entitled to ask themselves whether it was reasonable to think that the owner of drugs would entrust the same to an innocent dupe rather than to a knowing carrier or keeper who was fully aware of all the precaution to be taken.

(Transcript	9 F to H
	N to Q
	19 C to E)

(b) There was never any or any sufficient primary evidence about the owner of the dangerous drugs for a jury to be able in a proper manner to draw an inference concerning the owner's state of mind."

11. There is no merit in this ground. The complaint which is made is that it was wrong for the Judge repeatedly to suggest that it was unlikely that anyone such as Mr Lee would entrust very valuable drugs to an "innocent dupe" without informing him of the position. This did not amount to an invitation to the jury to indulge in speculation. In any event at an early stage in the summing-up the Judge specifically directed the jury not to speculate. The Judge also directed the jury that should they disagree with any views she expressed they should disregard them and adopt their own views.

12. The second ground is that:

"2. The Learned Judge erred in law in misdirecting the jury on both counts by effectively taking the Appellant's defence away from their consideration.

Particulars

(a) The Learned Judge repeatedly and unnecessarily stressed and directed that it was the prosecution's case that, even ignoring the Appellant's alleged admissions, the evidence showed that the Appellant was guilty of trafficking in dangerous drugs.

(Transcript	6 N to P
	14 C to E
	16 O to P
	17 Q to R)

(b) By reason of matters aforesaid, there was a grave danger that the jury thought that the Learned Judge was so impressed by the prosecution's case of the Appellant's guilt even without the alleged admission, that they thereby allowed themselves to be influenced by that perceived impression without properly and adequately considering the Defendant's defence.

(c) Further or alternatively, there was a grave danger that the jury understood the Learned Judge's repeated directions as meaning that, not only was it open for them to find the Appellant guilty, but that they should so find, given the prosecution's evidence, with or without the alleged admission."

(Transcript	14 A to E
	14 M to P)"

13. In each of the passages cited it is clear that the Judge is referring to the prosecution case and is not expressing her own view of the facts.

14. What the Judge did do was to set out in some detail the applicant's defence. This was done in a fair way. It was entirely open to the jury to accept or reject the explanation proffered. When all of this is taken in conjunction with the clear directions to the effect that the jury could only enter a guilty verdict if they were satisfied beyond reasonable doubt of the applicant's guilt it is evident overall that the directions given were not unfair.

15. Ground 3 is that:

"3. The convictions were unsafe and unsatisfactory in that the Learned Judge's summing-up to the Jury failed to achieve the requisite degree of balance that would have ensured the Appellant a fair trial.

Authority: Fraser Marr 90 Cr. App. R. 154

Particulars

(a) Paragraph 1 above is repeated.

(b) Paragraph 2 above is repeated.

(c) The Learned Judge unnecessarily and repeatedly emphasized the retail value of the dangerous drugs in the case.

(Transcript	8 N to S
	9 I to J
	18 C to F
	18 H to K
	18 S - T
	19 G to H)

(d) The Learned Judge unnecessarily and repeatedly emphasized the quantities of the dangerous drugs in the case.

(Transcript	5 B to G
	6 L, Q
	7 J
	8 G to I
	8 M to O
	8 O to S
	9 I to J
	18 C to F
	18 H to K
	18 O to R)

(e) The Learned Judge unnecessarily and repeatedly emphasized the need to focus on the Appellant whilst ignoring others which again undermined the appellant's defence.

(Transcript	9 I to J
	13 M to P
	13 Q to S
	19 H to J)

(f) The Learned Judge undermined the Appellant's innocent explanation for his physical possession of the dangerous drugs by then immediately dealing with his alleged admissions of knowledge to the Police.

(Transcript 11 M to 14E)"

16. Reliance has been placed by Mr Grounds for the applicant on a passage from the judgment of the Lord Chief Justice in R v Fraser Marr (1990) 90 Cr. App. R. 154, at p156:

"It is, however, an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties."

17. We agree with the observations made by Power VP in R v CHAI Chung-lam and Others, Unreported CACC No. 92 of 1992 when he stated that there was nothing in this passage which imposed upon the court any special duty where the prosecution case against a defendant was particularly strong.

18. We have considered the summing-up as a whole and are satisfied that it was essentially a sufficiently balanced summing-up and that the applicant's defence was properly put to the jury.

19. These convictions were in no way unsafe or unsatisfactory and this application is dismissed.