HKSAR v. WONG YU WING

CACC 209/2018

[2019] HKCA 1432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 209 OF 2018

(ON APPEAL FROM HCCC 375/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The appellant was charged with one count of trafficking in dangerous drugs namely, (1) 19.05 grammes of a crystalline solid containing 17.80 grammes of methamphetamine hydrochloride (commonly known as “Ice”), (2) 2.53 grammes of a solid containing 1.69 grammes of ketamine, (3) 0.26 gramme of a solid containing 0.23 gramme of cocaine and (4) 3.75 grammes of a mixture containing 3.18 grammes of heroin hydrochloride.

2.  On 4 June 2018, the appellant appeared before Deputy High Court Judge Douglas Yau (“the judge”) and pleaded not guilty to the charge but guilty to the statutory alternative of possession of a dangerous drug. On 10 July 2018, the appellant was convicted of the charge by the verdict of the jury and was sentenced to 82 months and 15 days of immediate imprisonment.

3.  On 30 July 2018, the appellant filed a notice of application for leave to appeal (Form XI) and sought leave to appeal against his conviction which was heard on 19 July 2019. After considering the contents of a letter dated 11 July 2019 that Mr Eric Cheung of the Faculty of Law of the University of Hong Kong had written to the court, the appellant was granted leave to appeal and an appeal aid certificate[1].

4.  At the hearing of the appeal we allowed it, set aside the conviction and ordered that the appellant be retried on a fresh indictment. We directed that his trial be expedited and granted him bail pending his retrial. These are our reasons for allowing the appeal and ordering a retrial.   

The prosecution case

5.  In the afternoon of 22 February 2017, a team of police officers arrived at Room D of Unit D on 3/F of Pak Fa Building, 53 Shek Kip Mei Street in Sham Shui Po, Kowloon (“Room D”) and kept the room under observation. The appellant was the tenant of this room. Later that evening, the team entered Room D as a friend of the appellant, Ko Chun Wai (“Ko”), was leaving it. Then the police officers searched the room in the presence of the appellant and Ko.

6.  In the course of the search the police officers found inside a floral-patterned box that was on a shelf outside the toilet, three transparent resealable plastic bags containing 19.0 grammes of a crystalline solid containing 17.8 grammes of Ice, 1 plastic bag containing 2.53 grammes of solid containing 1.69 grammes of ketamine, 1 plastic bag containing 0.26 grammes of a solid containing 0.23 grammes of cocaine, 1 plastic bag containing 9 pellets containing 3.75 grammes of a mixture containing 3.18 grammes of heroin hydrochloride and 1 plastic bag with a Precious Blood Hospital sticker and the appellant’s name on it containing 0.05 gramme of a crystalline solid containing Ice. The police also found inside this box one electronic scale and one transparent resealable plastic bag containing five empty transparent resealable plastic bags. A rental receipt showing rent paid by the appellant for Room D was also found inside another plastic box in the room.

7.  One of the team of police officers, PW2, arrested the appellant at around 6:31 pm. Under caution, the appellant was alleged to have replied to PW2:

“These dangerous drugs were for my own consumption. (If) someone wants (them), (I) will sell (them) to him/her.”[2]

8.  The appellant’s admission was later post-recorded in Chinese by PW2 in his notebook in Room D. The appellant was alleged to have counter-signed next to the relevant entries to indicate the entries were true and that the admission had been made voluntarily.

9.  Later that same night, the Police Dog Unit was summoned. With the assistance of a police dog, a green packet containing a suspected dangerous drug was found inside Room D. At around 8pm, a second arrest was declared to the appellant in relation to the green packet of suspected dangerous drug. Under caution, the appellant was alleged to have replied that “This bag of K (‘) Chai (’) (transliteration) is also for my own consumption”[3]. It was later confirmed the green packet did not contain any dangerous drug.

10.  The appellant and Ko were later taken to Sham Shui Po Police station. Between 00:03 am and 00:50 am on 23 February 2017 in Sham Shui Po police station, PW2 and PW4 conducted a video-recorded interview (the “VRI”) with the appellant. In this VRI, the appellant admitted being in possession of the drugs that had been seized by the police.

11.  When he was asked to further explain the admission that he earlier had made, the appellant said:

“ I actually purchased the dangerous drug for my own consumption. Sometimes, some of my friends, those (I) got to know at the amusement game centre, they abused dangerous drug as well. When they came, well, actually, it can be said that (I) treated them to (it) because I did not charge them. Well then, that’s why I said that (‘)(I) will let others have (it) if others want (it).(’). That’s it.”[4]

12.  In the VRI, the appellant also explained his possession of the electronic scale and the five empty resealable plastic bags. Regarding the electronic scale seized, he said:

“The electronic scale was used, for, er, weighing the dangerous drug bought, er, to see if th-the weight was enough because (I) was afraid of being conned”[5].

13.  In respect of the five empty resealable bags seized in Room D, he said:

“The several plastic bags were for making it, dividing the rather big bag into a few small bags so that it will be damp proofing. They would not all get dampened when it was damp.”[6]

14.  However, as the admissions were being contested the prosecution argued that even if the jury rejected the admissions, there was still sufficient circumstantial evidence for them to convict the appellant by drawing adverse inferences based on (1) the variety of dangerous drugs seized, (2) the presence of the electronic scale, and (3) the presence of the five empty resealable plastic bags.

The defence case

15.  The appellant elected to give evidence and called two 2 defence witnesses.

16.  The appellant testified that he was a drug user and that he was in possession of all the dangerous drugs that were found in Room D. He said that in early February 2017 he had bought all the dangerous drugs, in one packet for $6,000, for his own consumption. He had never sold or shared any of those drugs with anyone else and he did not have the intention to do so.

17.  The appellant claimed that he did not make the two admissions attributed to him at the time of his arrest and he did not voluntarily sign the post-recorded entries in respect of them. Furthermore, he did not conduct the VRI voluntarily but under threat and inducement. He claimed he was coached by police officers before the VRI was conducted to say that the dangerous drugs seized were to treat people if others so wanted and to make up things in the VRI. He also claimed more than half of the answers in the VRI were not true.

18.  In relation to the electronic scale, the appellant testified that his answer in the VRI was only partly true and that there was an another reason he had the scale and this was so that he could weigh the dangerous drugs he bought to control the quantity he consumed and to avoid the risk of overdosing.

19.  In relation to the five empty plastic bags, he said that the answer in the VRI was false and that the bags were for the purpose of dividing the drugs into smaller bags so that he could dry them if they ever got damp. If that happened he would use the air conditioner or an electric fan to blow the drugs dry.

20.  When cross-examined as to why he was in possession of four different kinds of drugs, the appellant answered that he abused several different kinds of dangerous drugs.

21.  In his closing speech, the defence counsel submitted, contrary to what the prosecution had said in respect of the circumstantial evidence, such circumstantial evidence did not allow the drawing of an inference that the appellant was trafficking in dangerous drugs. Furthermore, other pieces of circumstantial evidence provided the basis for the jury to draw favourable inferences for the appellant. The following 4 pieces of undisputed circumstantial evidence were relied on:

(1) the metal grill and the wooden door were open when the police officers gained entry to Room D;

(2) there was a police visiting book inside a box in the main gate at the ground floor of the building;

(3) the appellant frankly replied in the VRI regarding his telephone number; and

(4) the rental receipts of Room D which indicated the appellant was not concealing his identity.

The judge’s summing-up

22.  As the prosecution were inviting the jury to still find the appellant guilty by drawing adverse inferences against him from facts other than the disputed admissions, the judge directed the jury on how they could draw an inference by saying:

“Before I talk about those facts, let me say something about the drawing of inference, because that’s what the prosecution is going to ask you to do. They say without the admissions, there’s -- they ask you to draw inferences and that from those facts, you will draw inferences that the defendant trafficked in those drugs. But let me talk about inferences first.”[7]

23.  The judge then directed the jury on drawing inferences with reference to the circumstantial evidence on which the prosecution relied, namely, the variety of drugs, the electronic scale and the five empty plastic bags, as follows:

“Now in this particular case, the prosecution says there are three facts that will allow you to draw the only reasonable inference that the defendant was in possession of the drugs in room D for the purpose of trafficking even without the admissions at scene and in the VRI, okay? It’s without the admissions at scene and in the VRI.

The three facts are, first, the variety of drugs, they say. They say a normal drug user would not be in possession of four different kind of drugs, especially, since the defendant was only addicted to ‘Ice’ and not the three others. That’s what they say. The second fact is the presence of the electronic scale. They say a normal drug user would not have the need for an electronic scale. They say the only reasonable inference that the scale was there was so that the defendant could measure out how much dangerous drugs to put into the art -- empty plastic bags to sell, which then leads up to the third fact -- third fact which is -- the prosecution is trying to ask you draw the inference is the finding of the five empty transparent plastic bags in room D. They say it is the only reasonable inference - that the defendant was in possession of those bags because he was going to use them to put dangerous -- drugs in and then sell or share them with others.

Now whether you are able to draw the inferences is a matter entirely up to you. I would, however, observe, I would observe that if you in your deliberation decide that the defendant did not make the admissions, in other words, you find the defendant is telling the truth about him not intending to sell or share the drugs and that he made the admissions against his will, you may very well also consider that he may well be telling the truth about his usage of the drugs, the electronic scale and the plastic bags. Should that be the case, you would then not be able to draw the only reasonable inference that he had the intention to sell or share the drugs based on those three facts alone I set out above, but then I have to stress again: Whether you can draw the only reasonable inference that the defendant was in possession of the drugs for trafficking based on those three facts after finding that the defendant did not make the admissions is for you and you alone to decide.”[8]

24.  This was the only occasion he referred to what had been said in the prosecutor’s closing address. He at no stage in his summing-up referred to what had been said by the defence counsel in his closing address.

The Perfected Grounds of Appeal

25.  In his Perfected Grounds of Appeal, Mr Eric Cheung, solicitor advocate for the appellant, relied on the following two grounds of appeal:

(i)     the judge’s direction on inferential reasoning departed from the accepted norm in that the judge omitted to summarise the defence’s counter-arguments on the three pieces of circumstantial evidence relied upon by the prosecution and the four other pieces of circumstantial evidence relied on by the defence and the defence’s arguments on them; and

(ii)     the judge erred by not directing the jury that without the alleged admissions the three pieces of circumstantial evidence were insufficient to support an inference of trafficking and on this issue made confusing observations.    

26.  Mr Cheung submitted that the conviction of the appellant for trafficking was unsafe and unsatisfactory and that in the event that the appeal is allowed, a conviction for simple possession should be substituted.

The respondent’s submission

27.  Mr Ira Lui, for the respondent conceded that Ground 1 of the appellant’s appeal is meritorious and he would not oppose the appeal against conviction on this ground, but not Ground 2. He applied for an order for retrial.

The application for a retrial

28.  In applying for a retrial, Mr Lui asked the court to note that the sole ground on which the appellant’s appeal against conviction was being allowed was on the inadequacy of the direction on inferential reasoning and has nothing to do with sufficiency of evidence. Therefore, the case of HKSAR v Wong Pui Wo Kenny[9]that is relied on by the appellant, is not applicable as that involved an appeal that was allowed upon fresh evidence which undermined the strength of the prosecution case.

29.  Against the background that the admissions had been ruled admissible in the voir dire and that all the police witnesses firmly denied any allegation of impropriety against them, Mr Lui contended that the issue of whether the dangerous drugs in question were for the appellant’s own consumption should be determined by a jury.

30.  Mr Lui submitted that it was in the interests of justice to order a retrial. 

31.  In opposing a retrial Mr Cheung asked the court to have regard to the following:

(i) without the disputed admissions the prosecution had no case because the three pieces of circumstantial evidence did not allow of the only reasonable evidence that the appellant was trafficking in the drugs. Alternatively, if such an inference was available it was a much weaker prosecution case with no reasonable prospect of success;

(ii) the appellant would suffer irreparable prejudice from a retrial as the police officers would benefit from knowing the defence case and from having had an opportunity to rehearse their testimony in the first trial;

(iii) the appellant has been in custody for around 26 months which is equivalent to a sentence of 39 months’ imprisonment, allowing for remission for good behaviour. This is greater than any sentence that would have been imposed on him had he been convicted of only the possession offence;

(iv) the appellant has already endured a lengthy trial which lasted 25 days; and

(v) there would be a time lapse before any retrial.

Discussion

32.  In view of the respondent’s concession in respect of the first ground of appeal it is unnecessary for us to address the second ground of appeal.

33.  In respect of the first ground of appeal, we were satisfied that the concession by the respondent was properly made. It is, essentially, a complaint of an unbalanced summing-up. Given that the judge only referred to the prosecution case and nothing at all of the defence case when directing the jury on inferences, the complaint is made out. We, therefore, allowed the appeal and set aside the conviction. 

34.  The case against the appellant is, on its face, a strong one. The admissions, which on the defence case are admissions to what has become known as “social trafficking”, are to conduct which at law is trafficking in a dangerous drug. The admissions were ruled admissible after a contested voir dire and are supported by the circumstantial evidence. The appellant has served about half of his original sentence, allowing for remission for good conduct. All of these factors in respect of an offence as serious as drug trafficking would, absent strong countervailing factors, lead inevitably to a conclusion that was in the interests of justice to order a retrial.

35.  Here, the countervailing factors relied on by Mr Cheung were not at all strong. It is not for this court to pre-empt the jury by assessing what weight it would give to the admissions should they again be ruled admissible. The so-called “prejudice” that the appellant said he would suffer on a retrial is suffered by every defendant facing a retrial and is not a reason for not ordering a retrial. There is nothing which suggests that the length of the appellant’s trial was due to any fault of the prosecution.

36.  We were satisfied that, after having regard to all the circumstances, the interests of justice dictated that a retrial be ordered.  

Disposition

37.  For these reasons we allowed the appeal, set aside the conviction and ordered a retrial.