HKSAR v. YEUNG CHUN HIN

CACC 121/2019

[2022] HKCA 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 121 OF 2019

(ON APPEAL FROM HCCC NO 290 OF 2018)

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J U D G M E N T

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1.  The applicant was indicted on two counts of trafficking in a dangerous drug and in dangerous drugs respectively, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 29 March 2019, following a trial before A Pang J (as A Pang JA then was) (“the judge”) and a jury, the applicant was unanimously acquitted of Count 1, alleging the trafficking in 16.5 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, as well as the alternative offence of possession of a dangerous drug, but convicted of Count 2, alleging the trafficking in 315.67 grammes of “Ice” and 44 tablets containing 0.56 gramme of midazolam. He was sentenced to 15 years and 3 months’ imprisonment.

2.  By way of a Form XI Notice of Application, dated 15 April 2019, the applicant applied for leave to appeal against his conviction only.  He was represented in this hearing, and also at trial, by Mr Cheung^[1].

The prosecution case

3.  The incident took place on 11 October 2015 at the applicant’s home in Kam Tsin Tsuen, Sheung Shui, New Territories (“the premises”), which was rented in the name of his wife^[2].  Count 1 related to the ‘Ice’ allegedly found on the applicant’s person.  Count 2 concerned the ‘Ice’ and midazolam seized from a locked bedroom (“the bedroom”) on the 1^st floor of the premises.  It was not disputed that the drugs in Count 2, and their associated paraphernalia were found inside the bedroom^[3]: the essential issue to be determined was the applicant’s knowledge and possession of the dangerous drugs.

4.  In the small hours of the day in question, a team of police officers in plain clothes were keeping the premises under observation.  As the applicant emerged from the premises, officers intercepted him and found, in the cuff of his left sock, two packets of ‘Ice’, the subject matter of Count 1.  On his person were also found a telephone, some cash and a key-holder with three keys.  The applicant was duly arrested and cautioned for the offence of trafficking in a dangerous drug.  In response, the applicant claimed that the two packets of ‘Ice’ were for his own consumption (the 1^st admission).

5.  PW1, the arresting officer, then used two of the keys found on the applicant to open the main gate and the main door to the premises.  The applicant admitted under caution that the two keys belonged to him (the 2^nd admission). 

6.  The applicant’s wife and his daughter were inside the premises watching television in the living room.  PW1 used the third key to open the door to the bedroom on the upper floor of the premises, where 8 packets of ‘Ice’ and 5 foil packs of midazolam, the subject matter of Count 2, were found.  The applicant admitted under caution that the third key also belonged to him (the 3^rd admission). 

7.  The drugs seized from the bedroom, namely, 513.75 grammes of a crystalline solid containing 315.67 grammes of ‘Ice’ and 44 tablets containing 0.56 gramme of midazolam, had a street value of HK$162,345^[4] and HK$2,200 respectively.  Twenty transparent re-sealable plastic bags, a bowl and spoon and two sets of electronic scales were also found in the bedroom.  Traces of ‘Ice’ were detected in the bowl, the spoon and one of the sets of electronic scales.

8.  The applicant, under caution, admitted ownership of the ‘Ice’ and midazolam, as well as the plastic bag(s), the spoon, and the sets of electronic scales in the bedroom.  He further said that his wife and daughter had nothing to do with these items, and knew nothing about them.  He admitted sole ownership of the key to the bedroom (the 4^th admission).

9.  PW1 made contemporaneous records on his notebook of the above four admissions, and the applicant duly signed next to each of them in the notebook.  PW1 subsequently made a post-record upon his arrival at Sheung Shui Police Station, and the applicant signed on the same.  These admissions were held to be admissible following a voire dire.

10.  The prosecution case, in essence, was that the applicant was a drug dealer, who was conducting a delivery of the ‘Ice’ in Count 1 at the time, with the premises being the source of the drug supply.

The defence case

11.  The defence contended that the applicant did not have any drugs on him when he was stopped outside the premises; whilst the drugs found in the locked bedroom belonged to an acquaintance known as Chan Yuk-wa or “Wa Chai”, who sublet the room from him.  The applicant gave evidence, denying the making of any of the above alleged admissions and claiming to have signed on PW1’s notebook because of improper conduct on the part of police officers.  His daughter was called as a defence witness (“DW2”) concerning events inside the premises and her knowledge of “Wa Chai”.

12.  The applicant testified that he was intercepted when he went outside the premises to dispose of some cat litter, wearing his nightwear and slippers only, with no socks.  He denied being in possession of the ‘Ice’ in Count 1, or the cash or the key-holder.  He said he rented out the locked bedroom to “Wa Chai” and exhibited a purported tenancy agreement with him, dated 5 May 2015, as well as three letters or notices addressed to him at the premises.  He claimed that, despite keeping a spare key to the bedroom, he had no knowledge of the items inside.  He had told the police about “Wa Chai” and tried to contact him through his wife on the night of arrest, but in vain.

13.  As for the admissions, the applicant claimed that the police threatened to hit him and to arrest his wife and daughter, promising not to execute the arrest as long as the applicant cooperated.  The applicant at the time was tired and drowsy from taking sleeping pills and alcohol prior to his arrest.  Coupled with the various threats uttered, he signed on the documents and appended his declaration as directed against his will^[5].

14.  DW2 gave evidence as to the circumstances of the arrest in line with the applicant.  Further, she said she had seen “Wa Chai”, whom she described as “Uncle”, at the premises before, having last seen him about 2 or 3 months before the incident. She testified that she had said nothing to the police save for giving her personal particulars; she was requested by the police to sign a police witness document, which the police described as a routine document to show that a house search had been conducted; she said was given no chance to read the document and was not provided with a copy of the same^[6].

15.  The said statement was used for the purpose of cross-examination and duly retained on the court file marked “MFI-3”^[7]. It was not made a full exhibit and a copy of it was not given to the jury.  The contents of the statement detailed how DW2 shared a room with her mother on the second floor, while her father (the applicant) used another room on the second floor and was the only person with a key to this room.  She had no idea what the applicant did inside the room, nor did she know whether the applicant had a drug habit or that there were dangerous drugs in the room.

The perfected grounds of appeal

16.  It is complained that the judge erred by failing to direct the jury that:

(i)  If the jury doubted the credibility of police officers and thus rejected the written records of the various admissions, they should bear these reservations in mind when deciding whether the oral admissions had in fact been made, and if so, whether they were true;

(ii)  If the jury rejected the oral admissions and the written post-record in respect of Count 1, they should have taken that rejection into account when deciding whether to accept or reject the admissions in respect of Count 2;

(iii)  The jury should have been directed on an “all or nothing” approach to their verdicts, given that the evidence on Counts 1 and 2 were inextricably linked; and

(iv)  The judge erred in directing the jury in respect of the weight of the evidence.

17.  On 7 June 2021, the applicant amended the perfected grounds of appeal, further complaining that:

(i)  The judge erred in inviting the jury to convict the applicant on an alternative case without giving sufficient guidance in respect of what facts grounded such alternative; in particular, the prosecution had not advanced a case which, other than the admissions, relied on the drawing of inferences from circumstantial evidence; and

(ii)  The judge failed to direct the jury not to place any weight on MFI-3, which DW2 had disavowed in her evidence.

18.  Mr Cheung submitted that the different verdicts returned on Counts 1 and 2 were effectively perverse.  If the jury were not prepared to accept the evidence of the police on Count 1, which must have been false, they could not logically convict on Count 2 in reliance on the same officers’ evidence.  There was no other forensic evidence connecting the applicant to the drugs in Count 2 apart from his alleged admissions.  Furthermore, the judge was wrong to tell the jury that if they attached no weight to the applicant’s admissions, there was other evidence from which they could infer guilt.  It was also argued that the judge unfairly diminished the significance of the documents addressed to Chan Yuk-wa.

19.  It was further suggested that the unanimous acquittal of the applicant on Count 1gave rise to a lurking doubt in respect of Count 2, which was reached by a majority.

20.  With respect to MFI-3, it was submitted that the judge had failed to direct the jury that they were not to make any use of the contents of MFI-3.  Accordingly, the jury may have adopted an impermissible line of reasoning in convicting the applicant of Count 2. 

The respondent’s reply

21.  Ms Ko, on behalf of the respondent, submitted that the judge had fully complied with Specimen Direction 39, and had maintained throughout her summing-up that the jury should give their respective consideration to the oral admissions and the written records.  The judge had pointed out that the evidence of the admissions relied on the evidence of the same group of police officers; and she reminded them to take into account the various challenges that had been made to their evidence.  Ms Ko submitted that, given the progressive step-by-step analysis directed by the judge, the jury had been sufficiently and properly directed on evaluating the evidence surrounding the admissions.  Mr Cheung, who had conducted the appeal from the previous trial as well as the present trial, made no objection to these directions from the judge.

22.  Ms Ko submitted that the evidence and the issues on the two counts were very different.  Firstly, the basis of the applicant’s “possession” and “trafficking” of the drugs in Counts 1 and 2 were not the same: in Count 1, the applicant was alleged to have had actual physical custody of the drug, which he was said to be in the course of delivering, and to have admitted that he was in possession of them for the purposes of his own consumption (although this claim was not accepted by the prosecution); whereas, in Count 2, the applicant was said to have had sole possession and control of the bedroom in which the drugs and paraphernalia were stored, and from which store he would in due course deliver them. 

23.  Secondly, the defence to each count was different: in Count 1, the applicant denied the existence of the drugs and alleged a case of fabrication by the police; in Count 2, he conceded that the drugs did exist and had been found in the bedroom, and that he possessed a spare key to the bedroom, but suggested that the drugs were nothing to do with him and he knew nothing about them. 

24.  Thirdly, the evidence adduced by the applicant differed: in respect of Count 2, the applicant relied on a purported rental agreement and documents addressed to Chan Yuk-wa; while the jury was specifically directed to take the exhibits into account in considering the veracity of applicant’s defence on that count.

25.  Ms Ko submitted that, unlike the position in Chau Yui Ming where the adoption of the “all-or-nothing” approach had resulted from defence counsel’s forceful submission to the judge, Mr Cheung had made no complaint about the separation of the counts.  Indeed, the laying of separate counts and the judge’s directions were arguably favourable to the applicant.

26.  Ms Ko further argued that the judge was entitled to draw to the jury’s attention circumstantial evidence which might allow an inference of guilt to be drawn against the applicant, regardless of any admissions attributed to him.  The direction on inferences was given in terms which complied with Specimen Direction 21 and comprehensively covered the respective arguments of the parties.  The judge had clearly pointed out that whether the evidence was to be deemed relevant for their evaluation, and if so how, was a matter for the jury. 

27.  Concerning the evidential value of the letter purportedly issued by the Transport Department to Chan Yuk-wa (Exh D4), Ms Ko pointed out that the judge had raised her concerns about the weight which Mr Cheung had asked the jury to place on this document in his closing address to the jury; following discussions between the judge and defence counsel, the latter had agreed with the limited evidential value which could be placed on the document, given its hearsay nature.

28.  Concerning MFI-3, it was submitted that the prosecution had never relied upon the contents of the statement as to their truth, nor was the document physically before the jury, nor did the judge repeat its contents: it was only shown to the applicant’s daughter in the course of cross-examination for the purpose of impeaching her credibility.

Consideration

29.  Mr Cheung’s argument in relation to the jury’s approach to Counts 1 and 2 came very close to a complaint about inconsistent verdicts.  For the reasons given by Ms Ko, this argument is misconceived. There was a considerable difference between the evidence and issues relating to Count 1 and Count 2, the most fundamental being that the applicant disputed the finding of dangerous drugs on his person: he did not, however, dispute the discovery of dangerous drugs in the bedroom, which formed part of his home, and to which he admitted he kept a key.  The jury could well have been prepared to give the applicant the benefit of the doubt on Count 1, which essentially depended upon their assessment of the veracity of the police officers, but have entirely rejected the applicant’s evidence about another person residing in the bedroom to which he had a key, which did not depend of the veracity of police officers.  It should be remembered that the finding of dangerous drugs and other paraphernalia in the bedroom of his home were admitted facts, by which the parties (and the jury) were bound[8]. These facts, and the inferences which derived from them, did not depend on any assessment of the police evidence.

30.  Moreover, the judge made it quite clear, and the point could not have been lost on the jury, that there was evidence common to both counts, “and of course the same arresting officer dealt with the accused while he was outside the home premises and while he was inside the premises. So there is common evidence to both counts…”[9]. The judge had earlier explained[10]:

“However, as it is also the prosecution case that the accused must have used the locked bedroom as his trafficking base and that he had taken out the drugs in Count 1 for delivery to others, you may think that if you were to make findings of fact concerning the circumstances relied on by the prosecution, such findings in respect of one count of the trafficking offence faced by the accused might well be of assistance to you in considering whether the accused is guilty or not guilty in respect of the other count of the trafficking offence.” (Emphasis supplied)

31.  I do not think that the contention that this was an all-or-nothing case in which, if the jury found the applicant not guilty of one count, they must necessarily have found the applicant not guilty of the other count, is reasonably arguable.  The prosecution evidence was different on each count, as was the defence case.

32.  As for the judge’s directions in relation to the applicant’s various admissions, they are unexceptional and in accordance with the relevant Specimen Direction.  Moreover, Mr Cheung made no complaint about these directions, notwithstanding that he had been counsel at the applicant’s previous successful appeal.  These grounds are also not reasonably arguable. The same may be said of the judge’s directions in relation to the defence exhibits, who correctly voiced her reservations to counsel about how they should be used, which reservations Mr Cheung also appeared to accept.

33.  As for the alleged re-defining of the prosecution case, I do not find this ground reasonably arguable.  It was perfectly open to the jury to consider the inferences that were available from the circumstantial evidence, apart from the admission evidence.  In the present case, those circumstances would have been the fact that this was the home of the applicant, where he resided with his wife and daughter (who was 17 years of age at the time), and that a large quantity of dangerous drugs worth more than HK$164,000 and other paraphernalia were found in the bedroom of the premises, to which he had a key.  No complaint is made about the judge’s legal directions on the drawing of inferences.  The respondent would no doubt argue that, irrespective of the applicant’s admissions in relation to the drugs in the bedroom, once the jury rejected the applicant’s evidence that he had sublet the bedroom in question to Chan Yuk-wa and found that the applicant was the only one in possession of a key to a room, which was full of drugs, in the premises where he lived as head of the family, the inferences were compelling.

34.  The only ground of appeal which I consider is reasonably arguable concerns the judge’s directions (or alleged lack of them) in respect of the content of DW2’s witness statement MFI-3, which clearly contradicted much of what she had to say in evidence.  However, whether there was an irregularity; whether, if it was, it was material; and whether, if it was material, it is or is not susceptible of the application of the proviso to section 83(1)(c) of the Criminal Procedure Ordinance, Cap 221 are more issues for the Court of Appeal than for me as a Single Judge.  I shall not say anything further about the argument.

Disposition

35.  Accordingly, I grant leave to appeal on Ground 14A of the perfected grounds of appeal only and refuse leave to appeal on all other grounds.  The applicant will understand that he has the right to renew the grounds of appeal on which leave has been refused before the Court of Appeal, but he should also know that, if he does so and the Court otherwise dismisses his appeal, he risks an order for loss of time if the Court were to come to the view that there was no justification for renewing grounds on which leave has already been refused.

[1] The applicant was granted assistance by the Bar Free Legal Advice Scheme in June 2020.

[2] AB, p 12.

[3] AB, pp 9-11, Admitted Facts.

[4] HK$316 x 513.75 = HK$162,345, see [10] of the Admitted Facts at AB, p 12. 

[5] AB, p 64F-R.

[6] AB, pp 61C-62J.

[7] See AB, p 129; English translation, pp 130-131.

[8] AB, p 9 at [3]-[4].

[9] AB, p 26K-M.

[10] AB, p 25O-T.