HKSAR v. NGOMENE ERICK DAVID

CACC 122/2023

[2024] HKCA 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 122 OF 2023

(ON APPEAL FROM HCCC NO 76 OF 2021)

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REASONS FOR JUDGMENT

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1.  On 5 June 2023, following a trial before Deputy High Court Judge Woodcock (the Judge)  and a jury, the applicant was convicted of one count of trafficking in a dangerous drug, namely 982.2 grammes of a crystalline solid containing 968.8 grammes of methamphetamine hydrochloride (commonly known as Ice), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.^[1] On 6 June 2023, the Judge sentenced the applicant to 21 years’ imprisonment.

2.  On 26 June 2023, the applicant applied for leave to appeal against conviction.

3.  At the leave hearing on 20 September 2024, the applicant appeared in person, having had legal aid refused.  He confirmed that his application was based on the seven grounds of appeal noted in this judgment.  During the course of oral submissions, an issue arose in relation to the disclosure of data from the WhatsApp application on his mobile telephone. He claimed that his counsel sought to retrieve this data but was unable to do so, and as a result he did not receive a fair trial.  The respondent indicated that after the trial, the applicant’s mobile telephone was examined, and data regarding the events on the day of the offence was retrieved.  The case was treated as part heard to enable the respondent to provide the data in question and to address the issue raised by the applicant.

The prosecution case

4.  The prosecution case was that the applicant had trafficked in 968.8 grammes of Ice narcotic concealed in a parcel he was to deliver to another person.^[2]

5.  At around 5:00 pm on 29 June 2020, Customs officers in plainclothes observed the applicant behaving suspiciously at the junction of Nathan Road and Nanking Street, Yau Ma Tei, Kowloon.  At that time, he was holding a sealed small box, which had been previously delivered by SF Express at 4:15 pm to an address at Fuk Wah Street.  He was stopped by a Customs officer for inquiry.  The box he was carrying was searched, and nine metal pulleys were found inside.  The Customs officer considered that there may be concealed compartments in the pulleys, and the applicant was taken to the Customs office at the China Ferry Terminal.  The nine metal pulleys were cut open and nine bags of Ice were found inside.  The retail value of the drugs seized was $531,370.20.

6.  Upon arrest and caution, the applicant told the Customs officers that he did not know what the white powder concealed in the metal pulleys was, nor to whom the items belonged.  He said he was to bring the box to a woman called “Onye”, whom he was to call when he arrived at New Lucky House.  Two mobile telephones were found on the applicant, and he admitted that the Samsung telephone was to be used to contact Onye.  Also found on the applicant was the sum of $22,020.20 cash.  The applicant gave the passwords of his two telephones to the officers for examination purposes.  He also agreed to assist them in a controlled delivery operation.[3]

7.  In the controlled delivery operation, four calls were made using the applicant’s Samsung telephone to Onye’s number, but no one answered.  After the operation, a house search was arranged to be conducted at his home in New Lucky House.  He was unable to remember the floor or the room number of his house, so he took the officers to the place that he claimed was his home.  Two keys found on the applicant were used to open the lock of the premises, but neither of them worked.  The officers knocked on the door of the premises but no one answered.  It was then the applicant shouted out something in a foreign language, which the officers did not understand.  The applicant seemed agitated and was struggling.  They were on the rooftop of the building and the officers were concerned about their safety, so they called off the house search, and the party left immediately.[4]

8.  At trial, the prosecution adduced the video recorded interview of the applicant, which was conducted from 9:10 pm to 9:48 pm on 30 June 2020 with the assistance of an Igbo/English interpreter.^[5] Initially, the applicant said he was not willing to answer any questions but when asked about the nine packets of dangerous drugs found in the box, he denied knowledge of what they were and who owned them.  When the seized mobile telephones were shown to the applicant, he claimed that the Samsung telephone was his but that the other iPhone was a test telephone as he was in the business of buying telephones in Hong Kong and selling them in Africa.  The applicant said he used the seized cash to buy telephones and send them to Africa.

The defence case

9.  The applicant elected to give evidence but did not call any witnesses.^[6] He testified he was taking the box to a woman called “Onye”, but had no idea what was inside it, nor that there were drugs hidden inside the metal pulleys.  He said he came from Mozambique in Africa, where he traded in second-hand mobile telephones.  He came to Hong Kong in May 2018.  He claimed asylum and was assisted financially by the International Social Services (ISS)  in respect of his rent and food.  The applicant had a clear record in Hong Kong and Mozambique.

10.  The applicant said he would buy second-hand telephones in Hong Kong and send them back to Africa to earn some income.  He explained how he met a friend called “Nelson”, who later asked the applicant to deliver the box.  On the day of the offence, the applicant was in Sham Shui Po, checking second-hand mobile telephones, when Nelson called him for help to deliver the box, which Nelson said contained motor parts and was heavy.  He said he did not think the box contained anything other than motor parts.  He was angry that he had been tricked and used by Nelson.

11.  After the applicant had spoken to Nelson, a woman called him.  She told him to meet her at Fuk Wah Street to pick up the box. When they met as arranged, she took him to the first floor of a building, and in the corridor of that floor was the box that the applicant was asked to deliver.  The woman gave him $50 to take a taxi to New Lucky House in Jordan and Onye’s telephone number (which he had saved on his Samsung telephone).  She instructed him to call Onye when he arrived at New Lucky House.

12.  On arrival in Jordan, after the applicant got out of the taxi, he was immediately subdued by Customs officers.  He co-operated with them, and told them the box contained motor parts, which he was to deliver to New Lucky House.  Subsequently, he went with the officers to the Customs office, where he saw one metal pulley being opened, revealing a bag of white powder.  He was then arrested and cautioned.

13.  The applicant explained that the seized cash was to buy telephones as he had been shopping for second-hand telephones just before he was arrested.  He said he only had one key on him, not two.  He did not say that he lived in New Lucky House.  He said he told the officers that he lived at Lucky Building on Austin Road, his registered ISS address.  He agreed to assist in the controlled delivery operation and was taken to a car park. The officers called Onye’s number on his Samsung telephone four times, but no one answered.

14.  After the operation, he was taken to New Lucky House, but he did not know why he was taken there.  He claimed he did not lead the officers there because he did not know where they were going.  He saw one officer trying to unlock the door with a key, and no one answered the door.  It was at that time he lost his composure, as the handcuffs were hurting his wrists.  He said out loud in his mother tongue as to why he was put in pain when he assisted the Customs officers.  After that, the officers took him back to their headquarters for a further interview.

15.  In contesting the charge against the applicant, defence counsel highlighted to the jury the inconsistencies in the evidence of the prosecution witnesses, which the Judge repeated during her summing-up.[7]

The grounds of appeal

16.  In his notice of application for leave to appeal against conviction, the applicant complained that the Judge was biased.

17.  In his written submission dated 4 December 2023, the applicant advanced the following five grounds of appeal:

Ground 1:    The Judge’s summing-up was unfair and unbalanced in that she dismissed the challenges of the credibility and reliability of the prosecution witnesses as “unimportant” matters that had nothing to do with the issue of knowledge; and her directions were general and standard.

Ground 2:  There was a lurking doubt in the prosecution’s case in that the applicant was set up by the person who sent the Customs officers to arrest him; and the Judge did not order forfeiture of the cash found on him, when the prosecution submitted that the sum of money indicated that it was derived from drug trafficking.

Ground 3:  The Judge failed to give a Liberato direction when there was questioning that implied the applicant was under a duty to call witnesses or produce evidence to prove his case.

Ground 4:  The Judge failed to properly answer the jury’s question, which she only addressed in a very simple manner, and which basically sought corroboration for the applicant’s testimony.

Ground 5:  The conviction was unsafe and unsatisfactory based on the cumulative effect of the previous grounds.

18.  In a letter dated 26 April 2024, the applicant raised two additional grounds of appeal:

Ground 6:  There was a lack of evidence in the prosecution’s case to establish a conviction against the applicant to the requisite standard.

Ground 7:  The evidence of the applicant’s possession of a sum of money was prejudicial and the Judge did not properly address the matter in her directions to the jury.

Ground 1: Unfair and unbalanced summing-up

19.  The applicant submitted that the Judge dismissed the defence’s challenge of the prosecution witnesses’ evidence as “unimportant” to the only issue in the trial of the applicant’s knowledge of the drugs.  The applicant did not provide any particulars as to where, in the summing-up, the Judge had “dismissed” the defence’s challenge of the prosecution witnesses as “unimportant”.  It appears the applicant was referring to the passage, where the Judge summarized the inconsistencies of the prosecution evidence that was highlighted by defence counsel.^[8]

20.  The respondent submitted that the applicant’s complaint was unfounded as he had taken out of context the Judge’s comments, which were as follows:

“Do you think these inconsistencies are trivial, not important, or do you think any of them are important? You should decide whether they are true inconsistencies or whether they are material to the only issue in this trial, or are they unimportant and irrelevant?”[9]

“If in the end you find there to be relevant and important inconsistencies, you may conclude that that witness or all of the witnesses concerned is or are generally unreliable or unreliable in just one part of their evidence. That is a matter for you to find and decide.”[10]

21.  If there was any belittling of the defence’s challenges of the prosecution evidence, it came from defence counsel.  As pointed out by the respondent, defence counsel repeatedly referred to the inconsistencies or factual disagreements as “unimportant” during his closing speech.  At one stage, he said, “I don't think most of them are very important”.^[11] However, the Judge reminded the jury of the inconsistencies in her summing-up when she went through the testimony of the witnesses.^[12] 

22.  The applicant also complained that the Judge failed to adjust the standard directions according to the specific circumstances of this case.  There was no substance in this complaint, as the Judge gave the relevant directions to the jury in the context of the factual circumstances and issues of the case.  A reading of the Judge’s summing-up as a whole shows that it was fair and balanced.  She gave the relevant legal directions and provided a comprehensive summary of the evidence and the issues for the jury to consider.

23.  This ground of appeal failed.

Ground 2: Lurking doubt

24.  The applicant advanced two matters as to why there was a lurking doubt regarding his conviction.  The first matter was that he was set up, which was not a defence advanced at trial.^[13]  In his closing address to the jury, defence counsel made an oblique reference to the fact that the applicant was spotted by one of the Customs officers, but added that they could not speculate about the matter.^[14]  There was no factual support for the applicant’s contention that he had been set up to be arrested by the Customs officers.

25.  The second matter was that the Judge did not order forfeiture of the cash found in his possession in circumstances where the prosecution alleged that the money indicated that it was derived from drug trafficking.  This matter arose in the forfeiture proceedings after conviction and does not support the applicant’s complaint.  As the respondent pointed out, the Judge in her summing-up, properly set out the circumstances that the prosecution relied upon to show the applicant knew there were drugs in the box,^[15] which she immediately followed with the applicant’s counter arguments^[16].  At the conclusion of her summing-up, the Judge invited counsel if they had any comments to make, and defence counsel said nothing about the issue of the seized cash.^[17]

26.  There was no merit in this ground of appeal.

Ground 3: The Liberato direction

27.  By this ground, it was complained that the Judge should have given a Liberato direction because it was suggested in the questioning by the prosecution that the applicant was under a duty to call witnesses to support his evidence and that he failed to produce WhatsApp evidence to support his case. 

28.  The terms and scope of a Liberato direction have been addressed by the Court of Final Appeal in HKSAR v Kwan Tat Yee [18].  Clearly, the applicant’s complaint under this ground is misconceived as he did not understand the principles and the application of a Liberato direction.  However, the Judge gave a Liberato direction, in the sense that if the defence case was true or may be true, the applicant should be acquitted, on various occasions in her summing-up as illustrated by the following remarks:[19]

“I have previously told you that if the evidence given by the defendant is or may be true, then the defendant must be acquitted, found not guilty. Even if you entirely reject everything the defendant said, you do not believe him, that does not relieve the prosecution of its burden of proof. It does not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt. So if you entirely reject the defendant’s evidence, put it to one side and asked whether the prosecution has proved his guilt on the basis of the evidence which you accept.

  If, on the other hand, you find in relation to an issue in the case that the defendant’s evidence is or even may be true, then you are not entitled to find against the defendant on that issue and you must take his evidence into account.  As I said, it follows that if you reject part of the defendant’s evidence but you find some of his evidence is true or may be it is true, then you put aside the part that you reject and you concentrate on the defence evidence which you find is true or may be true and concentrate on the prosecution’s evidence which you are sure is true.”  

29.  Moreover, the Judge gave a complete and accurate direction to the jury in relation to the burden of proof and how they had to be satisfied on the evidence before they could find the applicant guilty of the offence.  No objection was raised in respect of the Judge’s directions to the jury on the burden and standard of proof, nor was there any legitimate basis to do so.^[20]

30.  The applicant also complained that the prosecuting counsel improperly questioned him regarding the efforts his lawyer had made to contact Mickey.  Mickey, who was Chinese, was the person the applicant said he dealt with at JK Empire to buy 15 telephones for $22,000 before he went out to collect the box.[21] He told him to hold the telephones and that he would be back later.  He said he used a translator on his telephone to communicate with him.  Prosecuting counsel asked him, “Had any efforts been made through your lawyers to contact Mickey?”[22]  However, when this question was asked, the Judge stopped this line of questioning, and prosecuting counsel withdrew the question.  The applicant did not have to answer the question.[23]  Furthermore, in her summing-up[24], the Judge directed the jury that suggestions put in questions were not evidence, unless the witness agreed to or adopted the suggestion.  The respondent submitted that the jury had been properly instructed and directed in relation to this matter, and nothing came of it.  Clearly, the matter was appropriately handled and there was no adverse prejudice against the applicant. 

31.  It was further complained by the applicant that prosecuting counsel improperly remarked about the evidence when he said in his closing address, “None of those matters are supported by any evidence from Mickey or anybody else or any documentation with regard to the telephone business that he has been doing for quite some time to make quite a lot of profit from many, many transactions”[25]. The respondent rightly submitted that there was no substance to this point as the Judge correctly directed the jury on the law and how they should assess the evidence.

32.  It was finally complained by the applicant that prosecuting counsel improperly asked him if he could find the WhatsApp messages on his Samsung telephone, when access had been given to him to examine his telephone on the first day of trial.[26] The applicant submitted that this confused the jury, as evidenced by the question they asked about the existence of such records.[27]

33.  The following was an extract from the transcript of the cross-examination of the applicant relating to the WhatsApp calls and messages:[28]

“ Q. So what you’re saying is that she said ‘Please come and get it now because I’m’ - in effect – ‘Please come and get it now because I’m heading out’. Is that - is that the way you understood?

A. Yes.

Q. And the -- you then said ‘Where should I be getting the box’.

A. Yes.

Q. And she didn’t - it seems like she didn’t say anything, but she sent you a WhatsApp message to say Fuk Wa Street.

A. Yes.

COURT: ‘And exit D2’.

A. Exit D2.

MR LASKEY: I’ll come to that if I -- oh, I see.

Q. She also mentioned exit D2.

MR LASKEY: Thank you.

Q. And was that in the WhatsApp message?

A. Yes.

Q. Did you know Fuk Wa Street before you got there - before you went there to do this?

A. (Interpreted evidence continues)  No.

Q. What I want to understand is had she -- you had spoken to her because you said she spoke English but couldn’t speak it well. You had spoken to her.

A. Yes.

Q. Right. Did she say ‘Do you know where Fuk Wa Street is’ or anything along those lines?

A. Yes.

Q. And what did you say in reply?

A. I answered no, I didn’t know.

Q. Right. Did she say anything -- she mentioned D2, I’ve got that as well, exit D2. Did she say what exit D2 related to?

A. She said ‘When you get to exit D2, cross’...

MR LASKEY: Sorry, ‘When you get to’?

INTERPRETER: ‘Exit D2’.

A. ... ‘you cross over then you ask people about the place’.

Q. ‘When you get to D2’, I didn’t quite hear, ‘cross over’, is that what you say?

MR DAVIES: ‘You cross over’.

MR LASKEY: ‘You cross over’.

MR DAVIES: ‘Then ask’ – ‘and then ask people about’...

MR LASKEY: ‘And then ask people’.

Q. And what did you understand you were supposed to ask? I daresay it’s obvious, but I still think you should answer.

A. That is to ask about the address.

Q. And the only address you had was Fuk Wa Street, is that right?

A. Yes.

Q. So you - you go to D2, her instructions are you then cross over the street and you ask someone how to get to Fuk Wa Street, is that it?

A. Yes.

Q. Help me. I don’t want to make this a language test, but would you be able to say that in Chinese, ‘Where is Fuk Wa Street?’ Would you have been able to say that? Or would you have to ask in English?

A. As it was sent through message - WhatsApp message, I showed by zooming it when I was making enquiry through somebody.

MR LASKEY: I’m sorry, ‘I would show the’?

INTERPRETER: ‘As it was a message sent through WhatsApp’...

MR LASKEY: Right.

INTERPRETER: ‘...I showed somebody by zooming on my phone to make enquiry.’

Q. Yes. So you get a message on WhatsApp and you can show it to somebody and say...

A. There is a vendor around that place, people that sell SIM cards.

Q. Well, it’s a -- you went there, didn’t you?

A. Yes, I went there and I was showing them.

Q. Right. And it’s a busy, and I suggest probably on that part, Monday afternoon, busy, crowded street. Is that right?

A. Yes.

Q. Right. In your searches of the Samsung phone, have you found the WhatsApp message that this female sent you?

A. Is it now or before?

Q. No, what I’m saying to you as at anytime afterwards have you managed to find the message that this girl sent you which guided you to Fuk Wa Street?

MR DAVIES: Has he ever had access to this mobile phone? That would be the first question.

MR LASKEY: Well, I thought this was the phone...

MR DAVIES: You see, the phone is locked up.

MR LASKEY: ..that was examined on last Thursday.

MR DAVIES: Yes, we -- that the problem is in -- we all know WhatsApp, you have to connect it to the internet. And if you -- we can’t connect it to the internet because it will destroy the information, and so it’s a pointless exercise looking at the WhatsApp message.

MR LASKEY: All right, well if it’s not - if it’s not possible, so be it.

MR DAVIES: Yes.

Q. No, it’s only that you were asked about examining the phone first thing this morning and I wondered whether you found it there. All right, you didn’t.

COURT: Photographs and videos.

Q. All right. So you go to -- with the help of the WhatsApp message you go to Fuk Wa Street, which you agree you’d never -- had you -- you’ve never been there before. Is that right?

A. Yes.

Q. How did you get to Fuk Wa Street, by what means?

A. On foot.

Q. All right. And you find your way to Fuk Wa Street and from what I think you’ve just said you were in fact showing the WhatsApp to people to help you to find it. Is that right?

A.    Yes.”

34.  The reference in the above exchange to the examination by the applicant of his mobile telephone was the subject of a letter dated 24 May 2023 from prosecuting counsel to the court in which he confirmed the arrangement with defence counsel to inspect the applicant’s mobile telephone.  The relevant part of the letter read:

“All the exhibits will be brought to Court for inspection by the parties, bearing in mind that the defendant is in custody and has not been able to see the exhibits, some time may be required.

  Part of the contested evidence relates to phone calls taken from the defendant’s mobile phone.  The defence wish to examine the mobile phone, again, it seems a reasonable request and will require some specialist technical equipment which is to be brought to Court tomorrow along with a police officer who is experienced in operating the equipment.” 

35.  Arrangements had been made on 24 May 2023, for the applicant and defence counsel to access the mobile telephone and according to the court clerk’s log that took place at about 9:36 am.  The applicant claimed he was not given enough time to examine the Samsung mobile telephone. 

36.  The respondent submitted that since the subject matter on this point was the applicant’s Samsung telephone, he must have been aware of the existence of its contents (including any possibly useful material to the defence case), which he knew had been seized by the Customs officers. Furthermore, material not produced by the prosecution, was unused material that was available to the defence to examine before trial, or at any time during the trial.  The respondent further submitted that it was a matter for the applicant, knowing the contents of his telephone, whether he wished to produce the contents of the telephone into evidence.  The applicant had testified in his defence and was asked questions about the contents of his mobile telephone but did not seek to produce any of the contents.  Furthermore, if the applicant found he had insufficient time or access to extract the data he wanted from his telephone, defence counsel could have requested more time from the court. However, it would appear that an informed decision was made not to do so.

37.  The respondent argued that this complaint needs to be considered in the context of the Judge’s directions to the jury, particularly her instructions to them not to speculate or guess on matters where there was no evidence.[29] She repeated this instruction several times.[30] 

38.  It was clear the applicant was given every opportunity to examine the mobile telephone as supported by the material submitted by the respondent.  It was even acknowledged by him that he had examined and extracted material from the mobile telephone when asked questions by his counsel in the following exchange:[31]

“Q. Do you remember last week in this courtroom, on Thursday, you, I and the customs examined your mobile phone, the Samsung mobile phone?

COURT: In the absence of the jury.

Q. In the absence of the jury?

A: Yes.

Q. And we looked at videos and we looked at photographs on that phone?

A. Yes.

Q. And we saw quite a few photographs showing pictures of mobile phones?

A. Yes.”

39.  It transpired that after his conviction, the applicant rendered assistance to the authorities by providing information, including explaining messages and calls on his mobile telephone.  He identified additional material on his mobile telephone regarding his dealings with the others involved in the present offence.  As pointed out by the respondent, the contents of his mobile telephone were available to him to produce at trial, but he chose not to do so.  In oral submissions, the applicant said defence counsel told him his WhatsApp messages would be detrimental to his evidence in court.  An examination of the additional material on the applicant’s telephone was different to his testimony, as pointed out by the respondent:

“(a)  There were different names for the person who sent him to collect the Box (not Nelson, but X), when the Applicant testified in trial that he only knew that person to call Nelson.

(b)  The female who gave the Box to the Applicant appeared to have a name saved as Y and the phone number was already saved under the phone contact, when the Applicant said in court he did not know her name and did not know her before.

(c)  The frequencies of calls with Nelson (only once)  and with the female of unknown name (up to three calls within 20-30 minutes)  as said in trial were different from the call log record (Annex 1(8)).”

40.  This ground of appeal failed.

Ground 4: The jury question

41.  By this ground, it was complained that the Judge failed to answer the jury’s question properly.  The applicant argued that the Judge should have given a Liberato direction, but as already noted the Judge gave on several occasions an appropriate direction concerning the burden and standard of proof. 

42.  The question asked by the jury read as follows:[32]

“There is no analysis of any WhatsApp calls or messages received on 29th June, 2020, on the defendant’s Samsung phone.

However, there was a screenshot on the phone, showing only four attempted calls to Onye, the said recipient of the box, made by the Customs officer (PW1).

Do you know, whether the lack of such evidence is due to the non-existence of these records?  Or did the Customs officers not check into this?”

43.  The Judge’s answer to the jury’s question was given after discussion with counsel, who agreed with the answer she proposed to give to the jury.^[33] The Judge took into account defence counsel’s suggestions that they should be told not to speculate^[34]; that no evidence had been produced concerning the WhatsApp calls or messages^[35]; and that all the evidence they had to consider had been presented to them^[36].

44.  The Judge answered the jury’s question in the following terms:[37]

“All the evidence you have to consider has been produced. There is -- there was no evidence produced of WhatsApp calls or messages. The only evidence relating to the phone other than that tab 7, the four calls to Onye, is that the Customs and Excise requested the passwords from the defendant. The defendant gave them the passwords to both phones, and Customs and Excise officers had his phones and the passwords. As I said in my summing up, if there is no evidence of a matter, you must not speculate or guess about that matter.”

45.  The applicant suggested in his submission that the Liberato direction was needed as requested by the defence counsel when he suggested to include “if there is a -- anything turns on it, the conclusion would be drawn in the defendant’s favour.”^[38]  However, as submitted by the respondent, counsel’s suggestion was not correct, as the Judge had pointed out an inference could not be drawn on “nothing”^[39], to which defence counsel agreed.^[40]

46.  The respondent submitted that the Judge’s answer to the question, as agreed by defence counsel, correctly informed the jury not to speculate when there was no analysis of the WhatsApp material before them.  As such, it was inappropriate to tell the jury that there was or was not any such analysis.

47.  This ground of appeal was not sustainable.

Ground 5: Insufficient “concrete” evidence

48.  The applicant alleged that there was no “concrete” evidence against him.  He submitted that the prosecution case was circumstantial, which was “merely based on assumptions”.  He said that there was “no phone conversation records, no messages, no photos” and nothing to prove that he was a drug trafficker or that he had knowledge of the dangerous drugs in the box.

49.  The respondent submitted that the Judge had properly given the standard direction on circumstantial evidence^[41] and inferential reasoning^[42], to which she also added that they were not to speculate.^[43]  Accordingly, the jury would not have engaged in an impermissible line of reasoning based on “assumptions”.

50.  In the circumstances, the respondent submitted that the Judge’s directions were correct and sufficient, and there was also sufficient basis to allow the jury to draw the only irresistible inference that the applicant knew the box contained dangerous drugs. 

51.  As the Judge had rightly pointed out,^[44] there was no direct evidence of knowledge in this case, and the prosecution relied on circumstantial evidence to draw an irresistible inference that the applicant knew there were drugs in the box.  The Judge gave the standard directions regarding a circumstantial case and listed the circumstantial evidence relied upon by the prosecution,^[45] namely the value of the drugs, the reaction of the applicant under observation, and the money possessed by the applicant at the material time.  In addition, there was also his telephone calls and his admissions of his dealings with others regarding the collection of the box, in particular his contacts with Onye.

52.  The facts and circumstances presented to the jury provided an evidential basis, depending on what evidence they accepted and what weight they gave such evidence, to draw the only reasonable inference that the applicant knew there were dangerous drugs in the box.

53.  This ground of appeal failed.

Ground 7: The money possessed by the applicant

54.  The applicant complained, without referring to any specific remarks in prosecuting counsel’s closing speech, that the prosecution had alleged that the cash of $22,020.20 found on him at the time of his arrest was “a reward payment to me to carry the box”, while there was no evidence to suggest that the money was derived from or connected with the alleged trafficking of the dangerous drugs. 

55.  The applicant also complained that the Judge failed to give a proper direction to the jury regarding the money, instructing them to ignore it completely. 

56.  As part of the prosecution case, it was presented to the jury that the applicant was found in possession of a large amount of cash at the time of the offence.  It had been made an admitted fact. The applicant elected to testify, and a major part of his evidence was to explain the circumstances in which he had the cash in his possession.  He confirmed that he was in the business of buying second-hand mobile telephones in Hong Kong and selling them in Mozambique.  He acknowledged that he was a Form 8 recognizance holder, receiving welfare benefits in the form of a rental payment and food coupons.  He explained that he did not have a bank account in Hong Kong but used the bank account of another person to be able to transact his business.[46] He claimed that the cash in his possession at the time of the offence was to buy telephones.[47]  He referred to pictures of mobile telephones stored on the Samsung mobile telephone as evidence of his business interest in mobile telephones.[48]  As he made it a significant part of the defence case, the applicant was cross-examined about his business in second-hand mobile telephones, in particular his dealings with storekeepers to buy mobile telephones, and the quantity of cash in his possession at the time of the offence.[49]  He testified that he was short of money on one occasion, and Nelson lent him $2,000.  He said that was why he felt obliged to help out Nelson when he requested him to collect the box.  The applicant was cross-examined about borrowing money from Nelson when he was making money from his telephone business.  He said he reinvested the money he made back into his business.[50]  He was also cross-examined about his evidence that the woman gave him $50 for the taxi when he was found to be in possession of $20,020.  He said the taxi fare was $48, but he could not remember if he received or kept $2 change.[51] 

57.  As pointed out by the respondent, prosecuting counsel, in his closing speech, referred only to the applicant’s possession of the cash. ^[52] He said, “Large amounts of cash are, we would suggest, indicative of drug dealing”, and he then challenged the applicant’s explanation for possessing the cash.  He did not refer to the cash as a “reward payment”.  It was put by the Judge in her summing-up that the cash was one of the pieces of circumstantial evidence that the prosecution relied upon.^[53]  The only reference to the cash being a “reward payment” came from defence counsel in his closing address to the jury.^[54]

58.  It was contended that when evidence of large amounts of money in a defendant’s possession is admitted, the principles and the required directions to the jury should follow those contained in paragraph 36.1 of the Specimen Directions in Jury Trials, approved by the Hong Kong Judicial Institute, which provides: [55]

“The prosecution has called evidence that the defendant [eg was found to be in possession of money] …

That evidence, if you accepted, does not by itself prove anything against the defendant. However, if you are sure that:

(a)  the defendant was indeed [in possession of this money …];

(b)  the defendant’s explanation for the [money …] is untrue; and

(c)  the [money …] can only be explained by continuing unlawful trafficking in drugs as opposed to unlawfully trafficking in drugs in the past,

  you may, if you think fit, take that evidence into account when deciding whether the defendant was unlawfully trafficking in drugs as alleged in the indictment.”

59.  As for the need for a special direction, the respondent referred to the case of HKSAR v Cheng Wai Kit ^[56]. In that case, the defendant made a similar complaint as to the judge's failure to give a “possession of money” special direction.  The defendant was found in a room with dangerous drugs, together with manufacturing and packaging paraphernalia.  He was also found to be in possession of $10,619.80 cash. During the trial, the cash found on the defendant was produced by way of an admitted fact, and the defence also proactively enquired about the source of cash in order to show that the defendant was engaged in proper business activities, namely operating a trading company in the sales of mooncakes, and the cash seized from him was a sales refund he had received the day before. 

60.  On appeal, the defendant complained that the prosecution case was strengthened by the assertion that the money on the defendant related to trafficking in drugs, yet the judge failed to give appropriate directions based on Specimen Directions in Jury Trials, Chapter 36.1.  The Court of Appeal rejected the defendant’s appeal.  The Court pointed out that the prosecutor, in his closing speech, did not suggest that the cash found alone was sufficient to support the contention that the defendant had actually committed the offence, and the trial judge only mentioned the cash found on the defendant as “related to trafficking”[57]. After a review of the relevant authorities, the Court noted the following:[58]

“(I)  Whether the court needs to give a special direction to the jury in respect of the cash found depends very much on the evidence in the case. The absence of such a direction does not necessarily result in injustice to the defendant;

(II)  The evidential value of the cash in question is that a drug trafficker will receive cash from trafficking and will also store up cash for purchases;

(III)  Where necessary, the relevant direction can prevent the jury from considering a defendant’s past acts of drug trafficking as a propensity to commit the offence, and mistakenly believing that a defendant who has trafficked in dangerous drugs in the past is necessarily guilty of the charge in question.

(IV)  Thus, the need for a special direction depends on the evidence in a particular case, and if there is no evidence before the jury at all pointing to the fact that the cash in question was the result of the defendant’s past conduct (‘historic origin’), the real issue for the jury is simply whether the defendant’s explanation for the cash is credible or may be credible, and not whether the cash is proceeds from the defendant’s ongoing drug trafficking instead of his former acts of trafficking.

(V)  In the context of (IV)  above, giving a special direction may unnecessarily complicate the matters and make it difficult for the jury to understand the relevant issues; and

(VI)  If the case involves a conspiracy to traffic in drugs, a special direction will be unnecessary as the nature of the charge already shows a certain degree of continuity.”

61.  The Court in Cheng Wai Kit held that not only the cash found on the defendant was adduced by admitted fact, it was the defence’s initiative to rely on this to prove that the defendant was engaged in proper business activities.  Given the defendant did not suggest that the money had a historical origin, rather it was the refund received on the day before the arrest, all that was required to be resolved by the jury was the credibility of the defendant’s account for the cash.  On the other hand, the Court held that Specimen Direction, Chapter 36.1, if given in that case, would not be of assistance to the jury in grasping the real issues, but might perhaps render the summing-up unnecessarily complex and difficult to understand.

62.  Applying Cheng Wai Kit, the respondent submitted that given (i)  the fact that cash was found on the applicant was adduced by an admitted fact; (ii)  the prosecutor did not suggest that the cash was the result of the applicant’s past conduct but merely to say it was indicative of drug trafficking; and (iii)  it was the applicant who used the seized cash in his cautioned interview and in examination-in-chief to establish his claim of conducting a telephone trading business, there was no need for the Judge to give a special direction on the money found on the applicant, as the issue for the jury to decide was merely the credibility of the applicant’s account for the cash.  There was no risk of the jury considering the cash to be related to previous drug trafficking offences by the applicant.  In any event, a special direction would have unnecessarily complicated the summing-up if it had been given.

63.  The prosecution never suggested that the cash in the applicant’s possession was the result of past dealings in drugs.  The applicant stated that the large amount of cash was for the purpose of purchasing telephones, but if that had been rejected, as it was by the jury, it was a relevant fact that the applicant had a large amount of cash in his possession at the time he was conveying drugs concealed in the box, which the jury were entitled to consider.  Prosecuting counsel said as much in his closing address to the jury:[59]

“He has got $22,000-odd in his pocket. Large amounts of cash are, we would suggest, indicative of drug dealing. Now, he has got an explanation about his phone dealing, and I’ll deal with that in a few moments, but again you must weigh up, if you feel you are able to on that point, where the truth lies with regard to having $22,000 of cash in your pocket and a box containing half a million dollars worth of drugs.”

64.  Prosecuting counsel was submitting that the large amount of cash that the applicant had in his possession related to the present offence, and it was a fact that the jury could consider if accepted by them.  Defence counsel submitted that it was not unusual for a person in the applicant’s circumstances not to have a bank account and to have to deal in cash when conducting a business in telephones.  He questioned how the cash related to the drug trafficking in the circumstances of the present case.[60] 

65.  The Judge, in her summing-up, addressed the issue concerning the cash in the applicant’s possession, noting that his explanation was that the money was used to purchase telephones in Hong Kong and sell them in Africa.[61] She also explained at length the defence position concerning the cash as follows:

“Now, Mr Davies for the defendant says the other side of the story is equally reasonable, equally plausible or believable and clear. He suggests you cannot draw an irresistible inference the defendant had knowledge from those facts that the prosecution is relying on. It has been highlighted in his -- Mr Davies closing speech that the prosecution’s evidence cannot make anybody sure that he knew the drugs were in the box. The evidence that he looked nervous is weak. $20,000 in cash cannot in itself be proof of drug trafficking activity.

In any event, the defendant had given an explanation at the earliest opportunity in his video recorded interview what the money was for in his pocket. He has in his evidence in court explained his involvement in mobile phone buying and selling since his earliest 2014 at home in Mozambique with some photographs to prove it.” [62]

…

“He [defence counsel] suggests that the prosecution’s evidence is weak and no inference can be drawn against the defendant with the only evidence being that he was walking down the street with the box that was sealed. The drugs were not visible to the naked eye, and he had $22,000 in cash.

Even if you are suspicious, members of the jury, that he knew, suspicious -- I have to remind you that suspicion is not the same as knowledge. It does not amount to knowledge. It is not enough by itself. So, members of the jury, in a criminal case, the inference drawn must be the only inference that can be drawn in the circumstances. Please use your common sense and experiences adults, men and women living in Hong Kong to decide if there is and what inference, if any, can be drawn.” [63]

66.  The Judge’s directions were extremely fair, and accurately summarised the evidence and the position of the parties on this issue.  No complaint could be made about the Judge’s directions, particularly when they were clearly fair to the applicant and were plainly perceived to be so by defence counsel.

67.  Given the way the issue of the cash was raised by the prosecution and explained by the defence, it would have been clear to the jury that they had to reject the applicant’s innocent explanation before they could regard the cash in the applicant’s possession is relevant to the offence.  It was a matter for the jury to decide whether the presence of the money, together with other circumstances, was indicative of trafficking in the drugs in question.  Moreover, it was not a case where it was being said that the cash had historic origins: R v Harrison [64].

68.  Whilst the issue under this ground of appeal has been addressed in some detail, after careful analysis I am not persuaded that it is reasonably arguable.

Ground 5: Unsafe and unsatisfactory

69.  This was a general ground based on the cumulative effect of the previous grounds.  As those previous grounds were unmeritorious, the combination of them did not raise any basis on which to argue that the conviction was unsafe or unsatisfactory. 

70.  This ground of appeal was not sustainable.

Conclusion

71.  As a result of the foregoing analysis of the grounds of appeal, the application for leave to appeal against conviction was refused.

72.  The applicant was reminded of his right to renew his application for leave to the Court of Appeal, but he was also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

[1]  Appeal Bundle (AB), 1.

[2]  AB, 9I-10U, 23K-24B, 26L-27A and 28N-32B.

[3]  AB, 4-5, Admitted Facts I, at [1]-[4]; and AB, 77-82, the Post Record.

[4]  AB, 30L-31C.

[5]  AB, 151-200.

[6]  AB, 11A-I, 15M-16D and 32Q-36C.

[7]  AB, 245G-249K, the Defence closing speech; AB, 15E-16D, 32C-P, the summing-up.

[8]  AB, 15E-16O.

[9]  AB, 16F-G.

[10]  AB, 16L-N.

[11]  AB, 244R-T.  See also AB, 245H, 246T, 247E, 247I and 249I-J.

[12]  AB, 32C-P.  

[13]  Applicant’s Written Submissions dated 4 December 2023, at [9]-[10], [13]-[14] and [21]-[22].

[14]  AB, 245O-R.

[15]  AB, 26L-27A.

[16]  AB, 27B-28M.

[17]  AB, 39T-41A.

[18]  HKSAR v Kwan Tat Yee (2024)  27 HKCFAR 6.

[19]  AB, 16T-17J.

[20]  AB, 39T-41A.

[21]  AB, 208K-213M.

[22]  AB, 209H-213M.

[23]  AB, 212U-213M.

[24]  AB, 17N-R.

[25]  AB, 239J-L.

[26]  AB, 222E-Q.

[27]  AB, 255.

[28]  AB, 220J-223A.

[29]  AB, 36D-G.

[30]  AB, 12G-H and 260B-F.

[31]  AB, 293K-P.

[32]  AB, 255.

[33]  AB, 256C-259K.

[34]  AB, 258C.

[35]  AB, 258K-M.

[36]  AB, 258T.

[37]  AB, 260B-F.

[38]  AB, 257S-T.

[39]  AB, 258B.

[40]  AB, 258C-E.

[41]  AB, 24C-25C.

[42]  AB, 26A-K.

[43]  AB, 12G-H, 36D-G and 260B-F.

[44]  AB, 24C-L.

[45]  AB, 26L-S.

[46]  AB, 271M-275I. 

[47]  AB, 280B-F.

[48]  AB, 293L-298R. 

[49]  AB, 208I-212C. 

[50]  AB, 215E-T.

[51]  AB, 234M-235O.

[52]  AB, 237S-238A.

[53]  AB, 26S.

[54]  AB, 250S-251A.

[55]  In the Notes to Specimen Direction 36.1 it was said that it was for the trial judge to determine whether cash may be relevant and admissible to any issue in the case and that such evidence was more likely to be relevant where the issue is unlawful trafficking by possession for the purpose of unlawful trafficking.

[56]  HKSAR v Cheng Wai Kit [2024] 1 HKLRD 667.

[57]  Cheng Wai Kit, at [39].

[58]  Cheng Wai Kit, at [40(I)-(VI)].

[59]  AB, 237S-238A.  See also AB, 239J-P, 242O-P.

[60]  AB, 250L-251C. 

[61]  AB, 10F, 23E-G, 26R and 34L-N. 

[62]  AB, 27B-J.

[63]  AB, 28G-M.

[64]  R v Harrison [2014] EWCA Crim 874, at [21] and [22].