HKSAR v. SZE SIU KIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 125
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. On 6th November 1998, we gave leave to appeal in this matter and, having treated the hearing as the appeal, we allowed the appeal or quashed the conviction. We now give our reasons.

2. The Applicant was charged together with Tsang Wai-ki with trafficking in dangerous drugs namely 1,331.56 grammes of a mixture containing 190.88 grammes of heroin hydrochloride. The indictment was severed and the Applicant was tried in the High Court before Gall, J and a jury. He was convicted and now seeks leave to appeal against this conviction.

3. The facts were relatively simple. The Applicant was arrested outside a building in Nathan Road at 12.31 p.m. on 9th October 1994. No keys were found on him. There was however evidence that the Applicant informed the police officers of the existence of the flat referred to in the charge namely Flat A3, Block A, 5/F., Lee Wai Building, 658 Nathan Road.

4. At 3:00 p.m. a police party attended at this flat and undertook a search. They found the dangerous drugs referred to in the charge together with other paraphernalia indicative of drug trafficking. They also found a tenancy agreement in the Applicant's name. The tenancy agreement ran from a date approximately two weeks before the date of the arrest.

5. At 9:00 p.m. the police arrested another man outside the premises. He had a small quantity of dangerous drugs in his possession and perhaps more significantly a set of keys which fitted the lock to the flat in question. Although this man was presumably Tsang he was never identified as such by name.

6. Although the Applicant's fingerprints were found on an alarm clock in the flat there was no other fingerprint evidence linking him to any of the drugs' paraphernalia found in the flat. The landlady gave evidence that she had not seen the Applicant at the premises since the tenancy had been entered into.

7. The 1st ground of appeal is as follows:

"The Learned Trial Judge erred in law in that he

1. (a) failed to direct the jury that there was no or insufficient evidence to support the indictment, so far as it alleged the Applicant acted as an accomplice in a joint enterprise with TSANG Wak-ki to traffick in dangerous drugs.

(b) authorized the jury to convict the Applicant of trafficking in dangerous drugs if they found the Applicant aided and abetted trafficking in dangerous drugs when there was no or insufficient evidence that he so aided and abetted TSANG Wai-ki."

8. The passage complained of in the summing-up of the Judge is in this form:

"The other side of the coin is this. The accused didn't have the keys. Now, I've said to you that doesn't mean he's not in possession, but Mr CHAN would argue to you, well, that means he's given them to somebody else, who is the man with the drugs. That does raise another issue. Remember Mr WONG, who sent his friend out to buy the drugs. He didn't have any contact with the drugs, but he was still involved in dealing in them. If, with the intent that somebody else should deal in the drugs, you acquired the premises on his behalf, knowing what he was going to do, and to help him and to assist him in doing that, you would be aiding and abetting his commission of the offence.

If I drive someone to the bank, I never go in, I drive them to the bank and they go in and rob, they come out and I drive them away, I have never robbed that bank. I didn't have a pistol; I didn't take the money, but I drove them there and back. I'm guilty of robbery, because I aided and abetted the person who actually robbed.

If you obtain premises for that purpose, but you would have to be sure that he knew why, that he knew what was going to happen, before you could find that he was assisting in that manner.

So, Mr CHAN says he didn't have the keys. You must consider that the inference to be drawn from the fact that he did not have them, and the fact that he told the police about the flat, not a thing, Mr CHAN says, would have happened if he really knew about the drugs then; that he may have innocently rented the flat and then given it to someone else to use, not knowing what they were going to do with it. He'd spent a lot of money, and he'd taken it for two years. Factors you must take into consideration."

9. There can be no doubt that this direction was upon the basis that the Applicant could be found guilty if the prosecution could prove that he was a party to a joint enterprise.

10. The question which has to be addressed is whether there was sufficient evidence available to enable the jury to draw an inference that there was a joint enterprise.

11. As can be seen from the short outline of the facts already given there was evidence connecting the Applicant with the flat. There was his indication at the time of his arrest of the existence of the flat. There was also the tenancy agreement and the fingerprint on the alarm clock.

12. The only evidence connecting the Applicant with the man who was later arrested was the fact that he had in his possession keys to the flat and a small package of dangerous drugs on his person.

13. There was no evidence directly connecting the Applicant with the dangerous drugs found in the flat or those found on the other man's person. We do not consider that there was sufficient evidence to enable the jury to infer that the Applicant had been a party to a joint enterprise. We also accept the validity of the submission made by Mr. Ross for the Applicant that it may well have been the case that the jury convicted the Applicant on the basis that he had been a party to a joint enterprise.

14. Mr. Bruce, S.C. for the Respondent argued that it was immaterial that this was the case as it was impossible for anyone to be found guilty jointly with someone else unless they were initially found to be severally guilty. He went on to place reliance upon the clear direction given on p.14 of the appeal bundle to the effect that the Applicant could only be found guilty of the offence if they were satisfied at the appropriate level that he had in fact been trafficking in dangerous drugs.

15. However this direction has to be read in conjunction with the passage earlier cited which clearly indicated an alternative approach based upon a joint enterprise. In the circumstances of this case that direction amounted to a material misdirection.

16. We would observe in passing that there is no merit in the contention advanced by Mr. Ross that it was incumbent upon the prosecution to establish Mr. Tsang's involvement in the offence.

17. While it was common ground that the charge was a joint and several charge it was apparent that the failure to amend the charge by deleting Mr. Tsang's name came about as a result of inadvertence. There had however been agreement between counsel that reference should not be made to Mr. Tsang.

18. However for the reasons given earlier this conviction cannot be regarded as safe and satisfactory. Accordingly the application is allowed and treating it as the appeal it is successful and the conviction is quashed.