HKSAR v. SO SUET CHUNG

CACC 113/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2014

(ON APPEAL FROM HCCC 518/2013)

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REASONS FOR JUDGMENT

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

1.  In the Court of First Instance, before Patrick Li J and a jury, the applicant was convicted after trial of two counts of trafficking in dangerous drugs, namely 1.47 grammes of methamphetamine hydrochloride (Count 1) and 18 tablets containing 0.08 gramme of nimetazepam, 12.52 grammes of methamphetamine hydrochloride, 0.09 gramme of a powder and one tablet fragment containing methamphetamine (Count 2). He was sentenced to concurrent terms of 3 years and 1 month’s imprisonment and 7 years and 3 months’ imprisonment respectively. Having been refused legal aid on the merits, the applicant, with the assistance of the Bar Free Legal Service, applied for leave to appeal against those convictions. He was represented by Mr Allan both here and the court below. We dismissed that application. These are our reasons.

THE PROSECUTION CASE

2.  At 10.28 am on 5 June 2103, the applicant, who was cycling down a slope from Kam Shan Tsuen in Tai Po, was intercepted by PW1 (DPC 49309) and PW2 (DPC 4982) and found to have in his jeans pocket two plastic bags containing five smaller bags of ICE – the subject matter in Count 1.  Arrested and cautioned for the offence of possession of, as opposed to trafficking in, dangerous drugs, the applicant stated that the drugs were for his own consumption.

3.  A larger party of police officers comprising PW1, PW2 and PW5 (Acting WDSGT 56439) then took the applicant back to his residence at Room A, No 4 Kam Shan Tsuen where, on the strength of a search warrant produced by PW4 (WDSIP LK Lau), the flat was searched.  This led to the discovery of a further assortment of dangerous drugs – the subject matter in Count 2.  Those drugs were kept in over 40 plastic bags found inside two metal boxes and one coin bag, all of which were located on a tabletop.  Elsewhere in the flat were two electronic scales, a considerable number of empty plastic bags and one ICE pot with three mouthpieces[1], amongst other things.  The applicant was not, upon discovery of this second batch of drugs, cautioned for any offence.

4.  Apart from the officers already mentioned, also present in or about the premises during the search were PW6 (DPC 3098) and PW7 (DS/SGT KH Lo)[2]. The evidence as to what each of these officers had done in Room A, and whether and what they may or may not have recorded in their notebooks or witness statements, was summarised by the judge as follows.  As will be seen, they are relevant to one of the grounds of appeal (special attention to the parts in italics):

PW1[3]

“[PW1] entered Room A followed by the defendant and also PW2 …. [PW2] found four mobile phones and $4,110 from the defendant later on during the body search. Also, [PW1] said he knew 46 packets of ‘Ice’, 18 tablets of ‘mg chai’, meaning the nimetazepam, and the ‘Ice’ pot, two electronic scales and a large number of plastic bags and Sellotape and aluminium foil were found.

 In cross-examination, [PW1] said it was PW2 who told him what was found. He post-recorded these items in his notebook. However, in his notebook, he did not record the purple tin box in which more drugs were found, the pair of scissors and the lighter.

 At 10.55 [PW1] started to post-record in his notebook what the defendant said and also the events of the arrest …. earlier on. He read it back to the defendant ….

 Under cross-examination by Mr Allan, [PW1] said he recorded in another police notebook that it was PW2 who searched the room. He did not record other details in the notebook. He thought PW2 would make a record in his notebook, and he actually confirmed that the defendant signed in PW2’s notebook. When asked why he did not record the details, he said if he searched the room, he would record the details. If another colleague searched the room and found the items, the other colleague would make a record.

 [PW1] said PW2 …. told the defendant about the body search. He closed the door of Room A during the body search. The defendant was searched inside the toilet. That was the most appropriate place for a body search. Under cross-examination by Mr Allan, he agreed that he did not record anything about the body search in his notebook or the statement but he recalled the details when counsel put questions to him.

 Later on …. PW6, came in to assist. He was standing at the doorway on guard. He also said he did not record this in his notebook as he thought [PW6’s] role was not important.

 [PW1] said he saw PW2 search the table first. At that time, he was also post-recording the arrest in his notebook. He did not pay attention to the whole search. He recalled that PW2 explained the search to the defendant and he also said PW2 had spent quite some time on the table. [PW1] said he reminded the defendant to observe the search. He saw PW2 put on a pair of gloves. He saw PW2 searching clockwise from the table, starting from the table. All this was not recorded in his notebook. During the search, he confirmed that the door of Room A was open. Other colleagues of his team were outside.

 Members of the jury, [PW1] has explained why he did not record the detail in his notebook or his statement.  It is a matter for you to consider whether this explanation is reasonable.”

PW2[4]

“ ….[PW2] entered the room following PW1 and the defendant. He saw on the table an ‘Ice’ pot. He thought the toilet was the most suitable place for the body search, so he told the defendant to go there for a body search. However, he did not record that down in his notebook.

 [PW2] found from the defendant during the body search a camouflage-colour bag containing one mobile phone and a gold-colour box with the $4,110 cash. There was another black waist-bag, inside three mobile phones. He recorded the body search in his notebook. He told the defendant to put back his clothes and open the door of Room A after the search …. He reported the result of the body search to the acting woman sergeant.

 Under cross-examination, [PW2] said he did not ask the defendant for consent before the body search; however, he said, the defendant did not object. He then started searching Room A at 10.50 am. He told the defendant to watch and he would tell the defendant what was found. He described the detail of his search to you, members of the jury. Just in case you do not recall, I now summarise his evidence during the search.

 He said he searched the table first and found, inside a purple tin box …. the purple box is on the left side of the table. Can you see? [PW2] said, inside this purple box, there were two packets of ‘Ice’ and 18 tablets of ‘mg chai’, No 5 ‘chai’. There was a beige-colour coin bag and another multi-colour metal box. The beige-colour coin bag contained three plastic bags. Inside these three plastic bags were about 38 packets of ‘Ice’. In the metal box, there were two packets of ‘Ice’, one packet was in tablet form.

 He counted the items and told the defendant about what he had found. He put back the items into the coin bag and then into the purple box. He also found an ‘Ice’ pot with tubings connected to it on the table. There was some liquid inside the ‘Ice’ pot which, according to the Government Chemist, contained traces of ‘Ice’. There were one white and one small electronic scale on the table …. three mouthpieces for the ‘Ice’ pot, four sections of straws sealed at one end, one bottle with filament, a pair of scissors and a green lighter. [PW2] said, on a chest, he found two bags of plastic bags, Sellotape, tinfoil and some straws …. He also found a tenancy agreement on the top of the refrigerator.

 During the search, PW1 was inside Room A with the defendant. [PW6] was standing at the doorway to assist. The defendant was sitting between the four-drawer chest and the sofa ….

 Members of the jury, under cross-examination by Mr Allan, [PW2] said he did not record down that the defendant was sitting between the four-drawer chest and the sofa in his notebook. [PW2] explained that he did not take down everything verbatim in his notebook or in his statement. He did not record that he showed the items to the defendant. The defendant, he also did not record that the defendant did not say anything. He only recorded down what was found. His main duty was an Exhibit Officer, that is why he only recorded down what was found.

 He confirmed that the defendant was not arrested for trafficking in dangerous drugs at the scene and the defendant was not cautioned for that.  He explained the defendant was arrested for possession of dangerous drug already; there is no need, according to [PW2], to arrest and caution again immediately when other dangerous drugs were found on the table. That is his explanation. Whether you accept or not is a matter for you.  [PW2] also said he tried his best to put back each item to its original position after he had taken them out and taken a look.” 

PW4[5]

“I am now going to the evidence of Woman Detective Senior Inspector Law, PW4. She said it was [PW7] who subsequently charged the defendant for trafficking in a dangerous drug on 5 June. She made no record of the time. During the operation, she said she waited for his team members in her car outside No 4 Kam Shan Tsuen. When [PW1] took the defendant back, she showed the defendant the search warrant ….

 Members of the jury, this is important. [PW4] explained that she did not record the detailed event. She said each team member had a different duty. It is impossible for her to record the details of what other officers did. There is no need to do so. She did not record in her notebook there was a body search.

 Under cross-examination, [PW4]said this.  She did not see the search inside Room A. She had assigned PW2 to be the Exhibits Officer beforehand.  She was at the corridor most of the time.  She never entered Room A.  She did not instruct anyone to arrest the defendant for trafficking.  She entrusted the duties to her team because some of her team members were more experienced than her.”

PW5[6]

“PW5, Acting Woman Sergeant 56439 …. said she arrived at Room A about 10.35 with PW1, PW2 and the defendant. They joined other team members there …. PW1 and PW2 conducted a body search and reported to her the result afterwards. There was no notebook entry as the responsible officer would make a record. She only recorded the time when the search started, that is the search of Room A. She put down important things, not everything that had happened. She could not recall the detailed conduct of PW2 during the search. She did not record the details in the search but she recorded what was found during the search in her notebook.

 Under cross-examination, [PW5] was asked to read out her record in the notebook, and this is her record: ‘11.50, DPC4982 finished search and found 46 packets of dangerous drugs, 18 pieces of “mg chai”, ‘No 5 “chai”, a pile of paraphernalia for consuming dangerous drug’. She maintained that PW2 would record the details. When asked why she could recall all the details if there is no record in her notebook, she said she read her notebook and she could recall some details. She did not know why the defendant was not arrested for trafficking in a dangerous drug at the scene. She agreed there was a duty for the police to do so.”

PW6[7]

“PW6 …. was the officer according to other officers standing at the doorway.  I hope you will remember him ….  He was present during the search; he was inside the room.  He did not make any record of what was found.  He only recalled some dangerous drugs were found. He thought PW2 would make a record.  The team had divided their duties, according to this officer.  The responsible officer should make their own record of their duties.  That is his evidence.”

PW7[8]

“PW7 [DS/SGT KH Lo] …. charged the defendant for trafficking in a dangerous drug at about 8 pm at Tai Po Police Station. The defendant had been arrested for possession of dangerous drug. He said, under cross-examination, that there is no need to arrest the defendant again at the scene. If the defendant was suspected of committing another offence, he said there was a duty to caution the defendant for that other offence at the scene. He said this under cross-examination.

 He also said under cross-examination that it was the acting woman sergeant who was handling the operation. He would let her conduct the operation. There was no problem so far as he observed. Most of the time he was outside at the corridor. He did not record down the detail of the search in Room A. He was not carrying out that duty on that day. If PW2 reported the result of the search to him, he would make a record. On that day, PW2 reported the result to acting woman sergeant only, although he could have heard some of the content.

 [PW7], under cross-examination, stressed that if he was conducting the search or making an arrest, he would make a record.  On that day, he was not exercising this power.  Again, this is his explanation why he did not record the detail of the events before or during the search.  You should consider his explanation and also consider the explanation from other officers and arrive at your own conclusion.  I shall return to that later on.”

5.  In a subsequent video recorded interview the admissibility of which was not challenged, the applicant admitted that he was the tenant of Room A.  He said he lived there alone, and was the only person to have the keys to the premises.  He declined however to answer most of the questions about the drugs in Count 2 except to say that, before his arrest, he had not noticed them to be anywhere in his flat.

THE DEFENCE CASE

6.  The applicant elected to give evidence.  He admitted possession of the drugs in Count 1.  He said he was carrying the drugs around to enable him to use them at will, but also to prevent his girlfriend from taking them.  Before his arrest, he had just returned from spending a night at a friend’s place and was bringing to the shops for repair a television set that he was carrying on his bicycle.

7.  Regarding Count 2, he said he was never shown any search warrant.  He was pushed into Room A and whilst being handcuffed at the back, made to squat on the floor with his head down.  As a result, he did not witness the search.  Moreover, he was neither shown nor cautioned in respect of the police findings and was therefore deprived of the opportunity to explain himself on the spot.

8.  In any event, it was the applicant’s evidence that the table on which the drugs were allegedly found was not in the position where the exhibited photographs showed it to be.  It was his evidence that the drugs and drug-related paraphernalia might have been left behind by his friends in their visit(s), without his knowledge and detection.  The applicant did not dispute that the drugs in Count 2 were all found inside his flat.

9.  The applicant confirmed what he said in the video recorded interview – with clarifications.  One such clarification was that both he and his girlfriend, and not he alone, had lived in Room A.  Since Kam Shan Tsuen was soon to be demolished, however, they had, at the time of the offence, moved to his mother’s flat.  The applicant said he gave inaccurate answers in the interview because he was frightened.

THE ISSUES AT TRIAL

10.  Correctly, the judge had identified the material issues in this case as follows[9]:

“The important issue, members of the jury, is, in relation to the 1st count, did the defendant possess the two packets of ‘Ice’ for trafficking? There is no dispute as to possession for the 1st count because he admitted it. The main dispute for you to decide in the 1st count is whether those dangerous drugs found on him was for trafficking. I shall explain to you what this ‘trafficking’ means later on, maybe tomorrow.

 For the 2nd count, the main dispute is twofold.  Was the defendant in possession of the dangerous drugs and the paraphernalia found in Room A?  Secondly, were those dangerous drugs found in Room A for the purpose of trafficking?  You understand?  This is important.” 

GROUNDS OF APPEAL

Grounds 1 & 2

11.  The complaint in these grounds was that the judge erred in law by wrongly placing the burden of proof on the applicant.

12.  In respect of Count 1 (Ground 1 referring), the following is the impugned passage in the judge’s summing-up[10]: 

“ If, at the end of the day, you do not think those two packets were for trafficking, or if you accept the defendant’s explanation that the two packets were for his own consumption, then you may convict him for possession of a dangerous drug.  This is an alternative charge to trafficking in a dangerous drug.  The law permits you to do so, even though this alternative charge is not set out in the indictment.  You understand?”

13.  As regards Count 2 (Ground 2 referring), it is these passages[11]:

“So for the 2nd count, if you reject the defendant’s explanation that the dangerous drug and the paraphernalia were left by his friend in Room A, then the prosecution evidence for you to consider are the following: that the defendant agreed or admitted that he lived alone in Room A and only he had the keys there - of course, provided that you accept the content of the video; and also the door of Room A was locked before the police entered; there were about 40 packets of ‘Ice’ of different sizes; there was one ‘Ice’ pod with a liquid containing traces of ‘Ice’; there were three extra mouthpieces to the ‘Ice’ pod; there were many small plastic bags; there was one large electronic scale and one small electronic scale; there were a bag of straws; and the retail value of the dangerous drug in Room A, we do not have the exact figure because, in the Admitted Facts, it was said it is over 10,000-something for the whole quantity of dangerous drugs found in this case. My simple calculation is just for the dangerous drug inside Room A, it would be around $9,000.

 Can this be sufficient to support the only reasonable inference that the defendant was in possession of the dangerous drug? Of course, the position of the dangerous drug as shown in the photograph is also relevant if you accept, if you accept the evidence of the prosecution witnesses.

 If you conclude that the defendant was in possession, then you should further consider whether it is the only reasonable inference that the defendant was trafficking in dangerous drug. Understand? Remember, if you think the defendant was sharing the dangerous drug in Room A with his friends, it is still trafficking. I said so because there is an ‘Ice’ pod there and several mouthpieces. You should consider that also.

     If you found the defendant was in possession of the dangerous drug in Room A but you do not think the dangerous drug was for trafficking, then you may convict him of possession of a dangerous drug for the 2nd count.  Again, this is an alternative charge to trafficking in a dangerous drug.  The law permits you to do so even though this alternative charge is not set out in the indictment.  Do you understand?”

14.  The short submission that counsel made was that the judge erred in failing to direct the jury further that they should acquit the applicant of the offence of trafficking if they thought the defence version of events was or may be correct.

Consideration

15.  We do not think there is any merit in these grounds. 

16.  The judge was coming to the end of his summing-up in the quoted passages.  He was, directly in the case of Count 1 and step by step in the case of Count 2, explaining to the jury the alternative verdicts that were available on the indictment, namely simple possession.  What he certainly was not doing was expounding on the burden and standard of proof. Such an exercise had been embarked upon at an earlier stage of the summing-up when the judge twice mentioned that the jury should acquit the applicant if they concluded that his evidence was or may be true[12]:

“Now let me go to burden and standard of proof. In this trial, the prosecution must prove that the defendant is guilty in respect of the two charges. The defendant does not have to prove his innocence or anything at all. This is important. I repeat, the defendant does not have to prove his innocence or anything at all. The prosecution has to prove the defendant’s guilt beyond a reasonable doubt. That means you are sure that the defendant is guilty of each count, you are sure.

 If, after considering all the evidence, you are sure the defendant is guilty, you must return a verdict of ‘guilty’, of course. If you are not sure, your verdict must be ‘not guilty’. If, after considering all evidence, you conclude that what the defendant said is true, or may be true, you should acquit him. If you conclude what the defendant said is true, or may be true, you should acquit him. You understand?” (emphasis added)

17.  It is also worth noting that immediately before these clear and emphatic directions, there was another set of directions explaining the meaning and use of circumstantial evidence, and the important precept that no inference must be drawn against the applicant unless it was the only reasonable inference[13]. 

18.  In Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701, in the joint judgment of Bokhary and Chan PJJ (as Bokhary and Chan NPJJ then were), it was stated at 710B – E that:

“In Liberato & Others v R (1985) 159 CLR 507 at p 515 Brennan J (later Brennan CJ) said in the High Court of Australia that ‘[t]he jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.’ And in Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475 at pp 486I – 487A we referred to that statement and said that ‘[w]hether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.’ Depending on the circumstances and the summing-up as a whole, it may be for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof provided that nothing said in the summing-up runs counter to that message.”

19.  We are satisfied that the same “message” had been effectively conveyed in the present case, albeit that there was a day’s break between the directions given on the burden and standard of proof (the first day) and the directions that were given on alternative verdicts (the second day).  We are not persuaded that the jury in this simple and straightforward case could have been misled on the issue.

Ground 3

20.  This ground complained of an unfair and unbalanced summing-up in that the judge had failed to point out with full force the shortcomings of the police evidence concerning the house search at Room A.  For the defence, its effect was to weaken their chances of persuading the jury that the drugs and drug-related paraphernalia were in fact found in places not immediately apparent to the applicant, hence disproving knowledge (see paragraph 8 above).  It was further submitted that this ground and Ground 2 would reinforce each other.    

Consideration

21.  Considerable details had been included in the criticisms of police witnesses.  They were set out in counsel’s written submissions.  We do not see the value of reproducing them in this judgment.  Suffice it to say that, in terms of areas, they did not seem to have gone much beyond that which the judge had referred to in his summary of the police evidence (see paragraph 4 above) and, in terms of particulars, the judge was not obliged to repeat in his summing-up everything that was said in oral evidence.  To that, we add counsel’s frank and fair admission that every criticism he now made of the police witnesses had been made in his final address to the jury.

22.  At pages 39G – 40E of the Appeal Bundle, the judge said this:

“In the present case, the defendant was arrested for possession of a dangerous drug already and he was under police custody. No further allegation was put to him in relation to the dangerous drug found in Room A. In fact, the police interviewed him later on, several hours later, at 4.41 on the same day. It was, at that time, the allegation of trafficking in a dangerous drug in Room A was put to him. You should consider all this background in assessing the credibility of the police officers.

 About the search warrant, when the police witness has a search warrant issued by a court in relation to Room A, the law empowers them to search that room. There is no need to seek any consent from the tenant or the landlord of Room A before the search. The defendant said he was not shown the warrant, he was not allowed to observe the search. He was handcuffed at the back, with head down, squatting by the bed. That is the defendant’s evidence.

Members of the jury, even if you think this is true, or may be true, it only affects the credibility of the police officers. It would not cast doubt on the fact that dangerous drug was found in Room A. Why? Because in fact the defendant admitted that the dangerous drug was found there during the search. In his cross-examination, that was his evidence.

 Why do I say this affects the credibility of the police?  Because there is dispute between the versions of the prosecution and the defendant as to the exact positions of the dangerous drug and the paraphernalia during the search, and those positions may be relevant to you when you consider whether the defendant knew there was dangerous drug inside this room.  The defendant disputed the position of Photo No 12.  The police said it was like that.  The credibility of the police witnesses is relevant when you consider who was telling the truth.”

We are satisfied with the way by which the judge handled the issue.  We are satisfied that the jury was fully apprised of the evidence concerning the house search. 

DISPOSAL OF THE CASE

23.  For the reasons indicated, we refused the application for leave to appeal against conviction.

[1] That is a device for smoking the drug.

[2] PW3 (DSPC 50023) was a photographer whose evidence has no direct relevance to this appeal.

[3] Appeal Bundle, pages 27L – 29C.

[4] Appeal Bundle, pages 29F – 31F.

[5] Appeal Bundle, pages 31L – 32C.

[6] Appeal Bundle, page 32D – P.

[7] Appeal Bundle, pages 32P – 33A.

[8] Appeal Bundle, pages 33B – P.

[9] Appeal Bundle, page 15M – S.

[10] Appeal Bundle, page 43M – Q.

[11] Appeal Bundle, pages 44B – 45B.

[12] Appeal Bundle, pages 21O – 22B.

[13] Appeal Bundle, pages 19B – 21N.