HKSAR v. CHANG CHE WEI

CACC 114/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2011

(ON APPEAL FROM HCCC NO. 228 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the reasons for judgment of the court):

Introduction

1.  At the hearing of this appeal we granted leave to appeal, treated the hearing of the application as the hearing of the appeal and quashed the conviction.  These are our reasons for so doing.

2.  The applicant was tried in the High Court before Bokhary J on an indictment that charged him with conspiring with his co-accused (D1) to unlawfully traffic in a dangerous drug, namely ketamine.  In the course of the prosecution case the count was amended so that it pleaded with conspiring together “with a person or persons unknown”.

3.  Essentially the case concerned the detection at the border by Customs and Excise (C&E) Officers of ketamine concealed in audio speakers being brought into Hong Kong.  The C&E Officers allowed a controlled delivery to take place to a warehouse where D1 and the applicant received the goods.

4.  At the end of the trial D1 was acquitted but the applicant was convicted and sentenced to 22 years imprisonment.  He appeals his conviction only.

5.  There are only two grounds of appeal.  The first is that the verdicts of the jury (i.e. in acquitting D1 and convicting the applicant) are inconsistent or insufficiently consistent such as to suggest a lack of sensible explanation.  The second ground is that there is a lurking doubt as to the safety of the conviction.

The Trial

6.  This was a circumstantial evidence case with much of the prosecution case not in dispute.  The jury were invited to draw an inference of guilt primarily from the association of D1 and the applicant and their presence together in taking delivery of the speakers.

7.  D1 participated in a pre-trial video interview which was adduced as part of the prosecution case.  He also gave evidence at trial and called two witnesses.  In contrast the applicant remained silent after his arrest and declined to give or call evidence.  Consequently the only evidence at trial concerning the applicant came from D1.

The Prosecution Case

8.  At about 11.35 am on 22 September 2009 an incoming container tractor crossed the Hong Kong/Mainland border at the Man Kam To Control Point. A C&E mobile x-ray vehicle scanned the container and a Customs Officer conducted a search of it.  The Customs Officers found at the bottom and innermost part of the container, paper carton boxes containing crudely made loudspeakers that bore no trademark.  Concealed inside the speakers in transparent polythene zip-lock bags was a white powder which, on being tested with a reagent, was confirmed to be ketamine.

9.  The C&E Department decided to allow a controlled delivery of the drugs to take place.  The container and its cargo were driven to a logistics company’s goods yard at the Kwai Chung Container Terminal.  The next day a transportation company received a phone call from a person calling himself Mr Chan who engaged this company to pick up the goods from the yard of the logistics company at the Kwai Chung Container Terminal and deliver them to a street in Kwai Chung.  But subsequently that day Mr Chan called a number of times and changed the delivery address to Regent Centre, Ta Chuen Ping Street, Kwai Chung.

10.  The driver of the transportation vehicle complied with these instructions and went to the goods unloading platform on the ground floor of Regent Centre.  He arrived there at about 15.50 hours and was met by D1 and the applicant.  D1 paid the driver $1,100 who then handed to him the delivery invoice.  At about 16.00 hours C&E Officers arrested D1 and the applicant.  Customs Officers seized a set of keys from D1 which opened Unit 1310 on the 13^th floor of Regent Centre.  Inside this unit were 11 pallets of goods wrapped in cling film containing a total of 275 loudspeakers, some packing equipment and two electric screwdrivers.

11.  Examination of the loudspeakers seized at the ground floor as they were being delivered that day revealed that 23 of them were found to contain a total of 140 packets of a powder weighing 138.70 kilogrammes containing 116.36 kilogrammes of ketamine.  Twenty of the loudspeakers from the pallets in Unit 1310 contained traces of ketamine.

12.  Immigration Department records showed that D1 and the applicant both entered Hong Kong through the Lo Wu border on 23 September within 15 minutes of each other, with D1 entering at 13.51.32 hours and the applicant at 13.37 hours.

13.  It was also proven that on 6 August 2009 D1 had entered a tenancy agreement to rent the Regent Centre unit.  It was an admitted fact that neither the applicant’s fingerprints nor DNA were found on any of the exhibits.

Submission of No Case to Answer

14.  At the close of the prosecution case the applicant made a submission of no case to answer.  The only evidence against him was:

1)  He was a mainlander who had crossed into Hong Kong on 23 September at 13.37 hours;

2)  the speakers containing the ketamine emanated from the mainland;

3)  the speakers were transported into Hong Kong on 22 September and delivered to Regent Centre a few hours after the applicant crossed into Hong Kong; and

4)  the applicant was present, together with D1, when the latter received delivery of the goods.

15.  When the goods were delivered, and prior to D1 and the applicant being arrested, the evidence was that the applicant was behaving passively and was not appearing to take any active part in the receipt of the goods.  There was no evidence proving that the applicant knew that ketamine was concealed in the goods.  The only evidence linking the applicant to the speakers being delivered to Regent Centre was his presence there with D1; there was no evidence at all linking him to Unit 1310.

16.  The evidence linking the applicant to D1 was being in his company at the time the goods were delivered, the fact that they crossed the border within a short time of each other, and possession by D1 at the time of his arrest of a travel quotation and receipt of Miramar Travel which bore the applicant’s name as customer and D1’s telephone number as the applicant’s contact phone number. In the course of his submission the prosecutor wrongly informed the judge that it was an admitted fact that D1 paid for this travel expense of the applicant.  The prosecutor relied on the fact that D1 paid for the applicant’s travel expenses as further evidence linking them together and, with the other evidence, of them being “in cahoots”.

17.  When the goods were delivered D1 claimed to the driver of the delivery vehicle to be Mr Chan and the suggestion is that the applicant must have heard this.  However, at the close of the prosecution case there was no evidence that the applicant must have known this was a lie.

18.  The trial judge ruled that there was a case to answer.

The Defence Case

19.  Only D1’s testimony provided further evidence against the applicant.

20.  In his examination in chief D1 said he was employed by a Mainland person by the name of Mr Chan at $10,000 per month as from May 2009.  He was employed to help Mr Chan set up a logistics company in Hong Kong and to look for a warehouse.  He first rented premises at Fung Lung Plaza and when he did so D1 falsely described himself as Mr Chan.  This rental ended on 28 July 2009 and speakers stored at Fung Lung Plaza were then transported to a mini-storage house.  These premises were used until 20 September after which the speakers stored there were transferred to the unit at Regent Centre.

21.  The first delivery work D1 performed for Mr Chan took place on some day after 10 July and was of speakers delivered to Fung Lung Plaza.  Mr Chan was present and he counted the cartons after the driver had placed them in the storage premises.  The next delivery occasion also involved audio goods.  These audio goods may also have been speakers.  On a different time on this day Mr Chan also had some salmon delivered.  It appears to have been on this occasion that the applicant first became involved in the delivery of Mr Chan’s goods. There were only two deliveries to Fung Lung Plaza.

22.  In respect of the goods delivered on 23 September D1 said he first learnt that they were coming on 22 September when Mr Chan came with two friends to be present at the delivery.  However when Mr Chan found out the delivery was delayed he returned to the Mainland.  That evening he called D1 and told him to come to the Mainland as there was something that he, Mr Chan, wanted D1 to do for him.  Once in the Mainland Mr Chan told D1 that he would not be available on the 23^rd and instructed D1 to arrange the delivery to Regent Centre and to return to Hong Kong together with the applicant.

23.  D1 testified that he first met the applicant around June 2009 at a Japanese restaurant at the Sunshine Hotel in China where the person sending the speakers to Hong Kong, Mr Chan, introduced the applicant as his “foki” who was there to help him.

24.  The second occasion that D1 met the applicant was in the same month, that is, June 2009, but this time in Hong Kong.  On this occasion D1 was instructed to assist the applicant with some travel procedures at the China Travel Agency.

25.  The next occasion D1 saw the applicant was in July 2009.  This was at Fung Lung Plaza, Fanling which D1 had rented as a storage place for Mr Chan’s goods.

26.  The final occasion that D1 met the applicant was on 23 September.  He had gone to the Gold Coast on the Mainland to accompany the applicant back to Hong Kong to receive the Regent Centre delivery.

27.  D1 also testified that the Miramar Travel documents were for the purchase of an air ticket for D2 to travel to Sydney Australia.  He had made these travel arrangements and paid for the ticket at Mr Chan’s request.

28.  In cross-examination by counsel for the applicant D1 agreed that the applicant wasn’t the foki of Mr Chan and was a business partner of another person attending the meal.  The business was buying mobile phones in China and selling them in Taiwan.

29.  D1 agreed, when it was put to him by counsel for the applicant, that after the occasion that D1 took the applicant to the China Travel Agency there were two occasions in July when the applicant was present at the delivery of goods and on each occasion performed the duty of counting the goods.  On the both occasions Mr Chan was present.  The evidence then becomes a little confusing as to whether on the first of these two occasions in July D1 took the applicant to the China Travel Service.  It may be that this was a second visit to China Travel Agency.  On the second occasion in July when goods were delivered D1 did not stay with Mr Chan and the applicant at Fung Lung Plaza as he had other things to do.  He simply took them there and left.

30.  In respect of the final occasion on 23 September D1 agreed that the role of the applicant in accompanying him to Hong Kong was to count the goods.  In cross-examination by prosecuting counsel D1 agreed that on 23 September he and the applicant were working as a team.  This last answer followed from D1 agreeing that he and the applicant had also travelled together in and out of Hong Kong on 25 June 2009.

31.  D1 also agreed that the applicant knew him by his true name of Ma and on 23 September would have heard him claiming himself to be Mr Chan.

32.  Taking D1’s evidence at its highest it is possible to say that prior to 23 September the applicant was present in Hong Kong with Mr Chan either every time or all but one timeFN that goods were delivered from the Mainland and that on each occasion he had a role in counting the goods.  The applicant was expected to perform the same role on 23 September but this time in the absence of Mr Chan.

The Appeal

33.  At the hearing of this appeal we expressed concern at whether there had been sufficient evidence to enable the trial judge properly to find a case to answer.  We invited Mr Tam, who appeared for the respondent on this appeal but not for the prosecution at trial, to describe to us the state of the evidence, as against the applicant, at the close of the prosecution case.  He said that in order to prove that the applicant had knowledge of the concealed drugs he relied on the evidence showing that the applicant was in possession of them, together with the presumption in s. 47 of the Dangerous Drugs Ordinance; in order to establish that the applicant was in possession of the speakers containing the drugs he relied on an inference of joint possession with D1; in order to draw the inference of joint possession with D1 he relied on the applicant’s presence at the delivery of the speakers at Regent Centre and the evidence that linked the applicant to D1 – namely crossing the border in close proximity to D1 and D1 being in possession of two travel agency documents relating to travel by the applicant.

34.  Consequently, the prosecution case depended entirely upon an adverse inference being drawn in respect of one of the core elements of the offence, that the applicant was in joint possession of the speakers.  The law on the drawing of inferences in order to find a case to answer was set out by the Court of Appeal in its judgment in Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1.  At page 12H – 13D the Court said:

“ In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.

If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?  If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

35.  We are only concerned with the third question posed above and need only apply it to the element of possession.  That question then becomes:

“Could, may or might a jury properly directed be satisfied beyond reasonable doubt that the applicant was in possession of the dangerous drugs by drawing the inferences that he was in joint possession with D1 of the speakers being delivered to Regent Centre on 23^rd September 2009 and knew that dangerous drugs were concealed within them.”

36.  The section 47 presumption may assist Mr Tam in respect of the second inference but is of no avail to him in respect of the first inference. What primary facts were there, then, from which an inference of joint possession could be drawn?

37.  We have set out the evidence previously and it is clear that whether such an inference could be drawn depended very heavily on the strength of the evidence linking the applicant to D1.  Of course that evidence became much fuller after D1 had given evidence but at the close of the prosecution case it was limited to presence at the delivery site, D1’s possession of some travel documents concerning overseas travel by the applicant and the fact that they both crossed the China/Hong Kong border within 15 minutes of each other.

38.  Given the importance to the prosecution case of the link between D1 and the applicant it is unfortunate that the prosecutor confirmed, rather than corrected, a misunderstanding that the trial judge had as to certain evidence pertaining to this link.  It never reached the level where it could allow of a positive answer to the no case question and the trial of the applicant should have been stopped with a ruling that he had no case to answer.  This was an error of law by the trial judge which on its own is sufficient reason to quash the applicant’s conviction.

39.  However in deference to the argument of the parties we shall make some observations on the lurking doubt ground of appeal.  This appeal is one where the sufficiency of the evidence was always going to be an issue and it is no criticism of Mr Loughran, counsel for the applicant, that he chose to approach this issue from an examination of the state of the evidence at the end of the trial rather than the close of the prosecution case.

40.  However D1’s giving evidence was quite fortuitous for the prosecution as it provided a more complete picture of the applicant’s involvement with the shadowy Mr Chan and his importation of speakers into Hong Kong.  D1 established a link between the applicant and Mr Chan and an association with the speakers arguably somewhat different from D1’s own association.  On D1’s evidence D1 performed a purely logistical role and was concerned only with renting storage places and ensuring that Mr Chan’s goods were successfully delivered to and stored at these locations.

41.  The applicant on the other hand was there, usually with Mr Chan, to not only ensure a successful delivery but then also to count the goods.  What counting of the goods required of the applicant was left tantalisingly obscure.  On one occasion when D1 had other matters to attend to he left Mr Chan and the applicant alone with goods that had just been delivered.  But of course it must be remembered that one of the admitted facts is that neither the applicant’s fingerprints nor DNA can be found on any of the exhibits and this includes the contents of Unit 1310.  Amongst the exhibits seized in this unit were two electric screwdrivers, an electronic packing machine and other packaging equipment. Thus whilst the testimony of D1 may draw the applicant closer to the goods there was still a complete lack of evidence showing that the applicant was involved with the goods in anything more than a quite minor way and that he ever unpacked any of them.

42.  Mr Loughran submits that, in reality, the evidence of D1 does not strengthen the case against the applicant as all it shows is that Mr Chan made use of others in order to carry out his drug trafficking but that his exploitation of these others, namely D1 and the applicant, does not make them his co-conspirators.  Just as D1 was innocently exploited, so was the applicant.

43.  It no doubt assisted the jury in forming a reasonable doubt in respect of D1 that they had the opportunity to hear from him.  Because the applicant exercised his right of silence both pre-trial and at trial there was nothing from him and this absence of an explanation may partly explain the different verdicts of the jury but, so Mr Loughran argues, it does not remove or lessen the doubts about the safety of the applicant’s conviction.

44.  The approach an appellate court should take to an invitation to invoke the “lurking doubt” principle was set out by the Court of Appeal in HKSAR v Chan Shu Ho [2008] 5 HKLRD 796 where, after examining a number of authorities, it distilled the following principles from them:

(1)    an appellate court should apply the principle with great caution as it does not enjoy the benefit which the jury had of seeing the witnesses and assessing their credibility;

(2)    a “lurking doubt” does not mean an insubstantial doubt but a substantial remaining doubt;

(3)    determining whether it “feels” there is a lurking doubt the appellate court has regard not just to the evidence but also its instincts and experience; and

(4)    where a defendant fails to give evidence it is much less likely that a court will feel there is a lurking doubt.

45.  In this case the first principle is not a concern for, as the Judge herself noted, the inculpatory elements of the prosecution case were essentially contained in the Admitted Facts and the live witnesses added little to them.

46.  In respect of the fourth principle care must be exercised in how it is applied.  The absence of any evidence from a defendant has two consequences. First it leaves the prosecution case uncontradicted by evidence from the defendant and secondly it may, by virtue of that reason, persuade a jury more readily to draw an adverse inference.  But this does not mean that the jury is entitled to draw an inference that is not otherwise available to them to draw. As was said by the Court of Appeal in HKSAR v Siu Mo Nor Isis [2005] 3 HKC 130 at 135G – H in respect of the effect of a defendant’s failure to adduce evidence:

“What it does not permit is the conversion of an inference which should not be drawn into one that may be drawn. It should not be used as a catalyst to convert suspicious facts into proven facts by inference.”

47.  Here the prosecution case was weak and as the evidence of D1 did not significantly strengthen it, the absence of an explanation from the applicant could not have any influence on the drawing of adverse inferences. This was pre-eminently a case where it was necessary for the jury to scrutinize very carefully the evidence against each defendant and determine just what inferences were reasonably open on that evidence and in respect of adverse inferences whether they were the only reasonable inferences available.

48.  We also note that at the end of her summing up the trial judge said to the jury:

“You may find it helpful to ask yourselves this question: Would anybody be there – would anybody be permitted to be there – in order in effect to meet those dangerous drugs unless he was a party to an agreement unlawfully to traffick in them.”

49.  Unfortunately this suggestion assumed that the defendants had a greater involvement with the goods other than simply as providers of delivery and storage services and glossed over the very issue the jury had to decide

50.  Had we not already decided that the judge erred in finding a case to answer we would have concluded that this was one of those rare cases where there was a substantial remaining doubt over the safety of this applicant’s conviction.

FN It is difficult to be precise about the effect of D1’s evidence as there were inconsistencies between what he said in his examination in chief and what he said in cross-examination.