HKSAR v. LAW WAI CHOI

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No.28
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced two charges of trafficking in dangerous drugs. The trial judge found no case to answer on count 2 but convicted him on the first count. That count reads as follows - that he on 26th January 1994 outside Flat G, 8th floor, Dor Hei Building, Nos. 86-88, Ting On Street, Ngau Tau Kok, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 8,000.48 grammes of a mixture containing 7,045.12 grammes of salts of esters of morphine. He was tried before Deputy Judge Hartmann (as he then was) and a jury and found guilty. He was sentenced to imprisonment for 19 years. He now seeks leave to appeal against both conviction and sentence.

2. It was the prosecution case that at about 5:25 a.m. on 26th January 1994, the applicant, with another man, approached the door of Flat G. He was seen by a surveillance team to unlock the iron grille and both men then entered the flat. Shortly thereafter, both men were seen to leave the flat. They were stopped by the police and a paper bag was taken from the applicant which contained the dangerous drugs the subject of the charge. He attempted to flee but was restrained. He was then arrested and cautioned and said in reply to the caution, "Ah Sir, the bag of white powder is not mine. Somebody told me to come to collect it." This statement was shortly thereafter post-recorded and the post-recording was signed by the applicant.

3. The applicant gave evidence saying that Chan Fei, a friend, had lent him the flat for one night and had also lent him a car. He said that Chan had asked him to put a bag of gifts in the car and that this was what he was doing when he was arrested. He denied any knowledge of the contents of the bag and said that he had made his reply to the caution because the police had already mentioned white powder to him.

4. This appeal turns upon a direction given to the jury in answer to a question which they asked after they had been considering the matter for some two hours. The question is set out together with the answer in a passage that appears at p.47 of the record:

"Court: Your question obviously needed to be discussed with counsel and I have obtained from them their assistance in the matter. Now, please do not think, in my answer, that I'm avoiding your question. I am not. But you, and you alone, are the sole judges of the facts. Your question was as follows: 'Should the defendant be acquitted if I believe that upon sight of the carrier bag he had suspected that it contained dangerous drugs (but he is not sure) as he was not informed in advance by Chan Fei of its contents?'

Members of the jury, in answer to your question, you must be aware that suspicion is not enough. To convict the accused, you must be sure that he knew that the bag contained dangerous drugs. If you are not sure that he knew, then you must acquit him. There may be many factors, if you find them proved, which help you to decide whether or not you can be sure that the accused knew. One such factor may, depending on the facts as you find them proved, be that he deliberately closed his eyes to his existing suspicion. But, in the circumstances, you would then have to be sure that he deliberately closed his eyes to his suspicions, because, in fact, and in truth, he already knew and was simply avoiding obtaining the confirmation which he neither wanted nor needed. In summary, you must, on the evidence as you find it, as the sole judges of the facts, be sure that he knew of the existence of the drugs. Unless you are so sure, you must acquit the accused."

5. It is submitted in the first of the grounds, which have been argued today by Mr. Haynes, that the judge's direction was a material non-direction in that the applicant was thereby deprived of a reasonable chance of being acquitted. It is contended that the judge should simply have said yes to the question.

6. The second ground argues that, given the evidence and the way in which the prosecution was conducted, wilful blindness was not a material issue and should not have been introduced into the trial.

7. The third ground argues that the direction was inappropriate because:

(a) The case for the prosecution was that the defendant was a knowing, willing courier in the picture from first to last.

(b) His opportunity for "the dawning of any guilty knowledge" was limited.

(c) The judgment in a successful appeal had expressly criticized another trial judge (at an earlier trial) for introducing 'inferential guilty knowledge'.

(d) In that trial there had been two defendants and the second count had not been withdrawn. Where, as here the judge had found no case to answer on Count 2 and there was only one defendant, reference to 'closing his eyes to existing suspicions' were even more inappropriate. Since it was accepted (at this trial) that there was no evidence connecting this defendant with the drugs in Count 2.

8. The fourth ground contended that if wilful blindness was introduced the jury should have been reminded of evidence in the defendant's favour tending to indicate that he had not deliberately closed his eyes to what he knew to be the real state of affairs.

9. We deal firstly with Grounds 1 and 2.

10. Ground 1, as we have said, was that the ruling was a material non-direction and Ground 2 that wilful blindness was never in issue at the trial and should not have been introduced by the judge. It was the jury who, by their question, raised the possibility of suspicion not knowledge which, it is important to note, pinpointed a time, i.e. "upon sight of the carrier bag". The first question that must be asked is whether it had been made clear to the jury, as it should have been, that the crucial time for their consideration was the applicant's belief when he was apprehended not when he sighted the paper bag. Once that was done it would clearly not have been enough for the judge simply to have answered "Yes" to the jury's question. If he had done so, it would have meant that the jury were being directed that the real issue was not the applicant's knowledge of the contents of the bag as he was leaving the flat but his knowledge at the time when he sighted the carrier bag. They were being told, quite wrongly, that the applicant should be acquitted if he only had suspicion at that time. This would clearly not have been a proper direction.

11. It is important when dealing with these two grounds to examine what the judge had already told the jury in the course of his summing-up.

12. At the very outset, he said:

"To convict the accused, you must be sure that he knew that the bag contained dangerous drugs. If you are not sure that he knew, then you must acquit him."

13. When directing as to the meaning of trafficking and of possession, he had said at page 9:

"In plain language you see, the prosecution says that when the accused carried that paper bag out of Flat G, he was in possession of the heroin contained inside the bag and he was in possession of it for the purpose of delivering it somewhere else." (Emphasis supplied.)

He went on, at page 11, to say to the jury:

"Before you can convict this accused, you must be satisfied so that you are sure that, when he walked out of Flat G with the paper bag in his band, he knew more than that he was carrying just some packages, he knew that those packages contained dangerous drugs." (Emphasis supplied.)

14. We turn to page 15 where the judge said:

"If, on the totality of the evidence, the prosecution has not made you sure that the only reasonable inference you can draw is that the accused, when he came out of Flat G, knew that he was carrying dangerous drugs, then you must acquit the accused." (Emphasis supplied.)

15. Finally at page 16 he said:

"If, upon a consideration of the evidence, you have a reasonable doubt that the accused may have been used as such a dupe, without realising he was carrying drugs, then, as I have already directed you, you will acquit him. If, however, on the totality of the evidence, you are sure that the accused, when he emerged from Flat G, did know he was carrying drugs and was doing so as a courier in the drugs trade, then it will be your duty to return a verdict of guilty ..." (Emphasis supplied.)

16. The judge had, in these passages, made it clear beyond argument that the crucial point was when the applicant walked out of Flat G.

17. We return to look at the words of the direction of which complaint is made. The judge immediately told the jury to acquit if they were not sure of knowledge. He then told the jury that whatever suspicion might have existed, they had to be sure that "in fact and in truth he already knew and was simply avoiding confirmation which he neither wanted nor needed". The jury, we are satisfied, could not but have related this direction to the need to be sure at the time when the applicant left the flat. He finally said:

"In summary you must, on the evidence as you find it, as the sole judges of fact, be sure that he knew of the existence of the drugs. Unless you are so sure you must acquit the accused."

18. When the passage is read in the context of the summing-up as a whole, we are satisfied that what the judge said was not a misdirection nor was it in any way wrong to direct, as he did. The effect of his direction, when the passage is placed in context, is that whatever suspicion might have existed at the time when he sighted the carrier bag, the real issue was whether in truth and in fact he had knowledge at the time of arrest.

19. We turn then to Ground 3(a), which is that the direction was inappropriate because the case for the prosecution was that the defendant was a knowing courier. It is certainly true that the prosecution case was that he was a knowing courier, but it was also his defence that he was an unknowing courier. In such circumstances, a direction such as the judge gave, which went to knowledge, was, we are satisfied, entirely appropriate.

20. Ground 3(b) deals with the failure of the judge to deal with the applicant's opportunity for "the dawning of any guilty knowledge. It is suggested that that opportunity was limited. This can be dealt together with Ground 4, in which it was suggested that if wilful blindness was introduced, then the jury should have been reminded of evidence in the applicant's favour which tended to indicate that he did not deliberately close his eyes to the state of affairs that obtained. The jury, we are satisfied, must have been well aware of all of these matters. The judge had given a clear and comprehensive summing-up in which the state of the flat and what was in it had been canvassed and further the jury had a series of photographs of the scene. We do not consider that the judge was required again to traverse that evidence.

21. We turn finally to Ground 3(c) and (d). We have already read those grounds. We have considered the submissions which pray in aid an appeal judgment in this matter which resulted in a re-trial. We are not satisfied that the observations in that appeal have any relevance to the matters that have been raised before us today. Further we do not consider that the finding by the judge that there was no case to answer on Ground 2 in any way assists the applicant in this appeal. In all of the circumstance, we are satisfied that the conviction was neither unsafe nor unsatisfactory and the application is, therefore, dismissed.

22. The applicant has also sought to appeal against his sentence of 19 years. On two occasions, the applicant was convicted and sentenced to 22 years in relation to this offence. Re-trials were ordered making this the third trial. The sentencing judge in this trial reduced the sentence from 22 years to 19 years because of the trauma which he felt the applicant must have suffered by reason of his having to undergo to two trials prior to this trial in which he was again convicted. We are satisfied that 22 years, given the quantity of drugs, was a proper sentence. The judge exercised a considerable degree of leniency when he reduced that by three years because of the emotional trauma. There is no way in which we could properly interfere with that sentence. This application must also, therefore, be dismissed.