HKSAR v. HUNG MAN NEI VIVIAN

HCCD 1/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR DISCHARGE NO. 1 OF 2004

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J U D G M E N T

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1.  The Applicant in this matter was committed for trial by a Magistrate on 26 March 2004, pursuant to the provisions of sec. 80 of the Magistrates Ordinance, Cap. 227, to  face two counts in each of which she is jointly charged with one WONG Peng-pan, the Second Accused.  The counts read as follows:

First Count

STATEMENT OF OFFENCE

Trafficking in dangerous drugs, contrary to section 4(1) (a) and (3) of the and (3) Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

HUNG Man-nei, Vivian and WONG Peng-pan, on the 28th day of November, 2003 at the Ground Floor lobby of Kiu Fat Mansion, No. 96, Lok Shan Road, Tokwawan, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 2.239 kilogrammes of a powder containing 1.59 kilogrammes of ketamine and 199 tablets containing 20.22 grammes of 3,4-methylenedioxymethamphetamine.

Second Count

STATEMENT OF OFFENCE'

Trafficking in dangerous drugs, contrary to section 4(1) (a) and (3) of the and (3) Dangerous Drugs Ordinance, Cap. 134.

PARTICULARS OF OFFENCE

HUNG Man-nei, Vivian and WONG Peng-pan, on the 28th day of November, 2003 at Room W, 12th Floor, Kiu Fat Mansion, No. 96, Lok Shan Road, Tokwawan, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 1.314 kilogrammes of a powder containing 0.929 kilogramme of ketamine and 48 tablets containing a total of 4.83 grammes of 3,4-methylenedioxymethamphetamine.

2.  The trial is set down to commence on 3 December 2004.

3.  The first count relates to two separate and distinct quantities of dangerous drugs: one quantity was being carried by the Applicant on her person whilst the second quantity was being carried by the Second Accused about his person.  The second count relates to a third quantity of drugs found inside the Applicant's residents.

4.  It is to some extent the unhappy way in which the charges have been framed that gives rise to the present application.  The Applicant has indicated an intention to plead guilty to the first count but only in respect of the quantity of dangerous drugs which were found on her.  She denies having trafficked in, in the sense of being in possession for the purposes of trafficking in, either the quantity of drugs found on the Second Accused or any of the drugs which are the subject matter of the second Count.

5.  The Applicant now makes application in terms of section 16 of the Criminal Procedure Ordinance, 221, for her discharge on the grounds that the evidence disclosed in the documents is insufficient to establish a prima facie case against her in respect of 6 tinfoil packets of powder containing a total of 1.049 kilogrammes of ketamine that were found inside a bag carried by and 199 tablets containing 20.22 grammes of 3,4- methlenedioxymethaphetamine that were found on the body of the Second Accused in respect of Count 1 and all the dangerous drugs in respect of Count 2.

6.  I see no reason why if the applicant is entitled, as she is, to make an application in respect of an entire count she should not be entitled to make an application in respect of a portion of one count.  In the context of this case it is of particular importance that she be permitted to bring her application on this basis.

7.  In allowing an appeal against the granting, by Sears J., of an application under section 16 the Court of Appeal in Attorney General versus PHUNG Van Toan and Others CACC 82 of 1991 said this

It must be borne in mind overall that the purpose of a committal is to see if there is, on the merits, sufficient evidence to establish a prima facie case against the accused in respect of the offence charged. Further that if an accused elects to have "a paper committal" and raises no objections at that time - and this appears to be the rationale behind the procedure - the magistrate is entitled to accept, on the face of the "documents handed into court", that there is such a case against an accused.

We accept that to ground a prima facie case the documents must contain admissible evidence and conform with the requirements of the applicable Ordinances. We are not here directly … concerned with the test to be applied to the concept of prima facie case but we would fully adopt the test referred to in the Attorney General v. Li Fook Shiu [1990] 1 HKC 1 where the Attorney General sought to appeal against a successful application for discharge in proceedings concerning the Complex Commercial Crime Ordinance, Cap. 294. Kempster, J.A., in delivering the judgment of the court… said of the judge hearing such an application:

"In relation equally to primary facts and to inferences to be drawn from such facts his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are 'matters generally speaking within the province of the jury' in the language of Galbraith. Both can critically be affected by later evidence of lack of evidence from the defence. Assuming all proper directions the test is not what the judge thinks the jury, and still less he, 'must' conclude at that moment: but what a jury 'could, may or might' properly conclude in the future."

….

At the time of this type of application no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.

8.  PHUNG Van Toan and Others was cited with approval in the subsequent case of R v TIN Sau-kwong [1996] 1 HKCLR 9.  Leonard, J., said, at 12J

… the difference between, on the one hand, the situation where there is an application for discharge after a committal where the evidence has not been considered … and, on the other hand, the situation where a judge is hearing a submission of no case at the close of the Crown's evidence. In the latter situation the judge has been and heard the Crown witnesses … and he is aware of the true quality of the evidence. In the former highly artificial situation, the judge can only assume that the paper evidence before him will be taken at its highest by the jury.

9.  Leonard, J., highlighted the difference again at 16D:

This is another illustration of the difference between a section 16 application in the present circumstances and a submission at the close of the Crown's case. It may well be that this and other evidence would be excluded by the trial judge in his discretion on the ground that such probative value as it may have would be outweighed by its prejudicial effect, but it is not for me at this stage to anticipate such a ruling and I must at this stage assume that all admissible evidence is before the jury.

10.  The fundamental basis of the present application is that there is insufficient evidence in the prosecution case of the fact that the Applicant was in possession of any of the drugs other than those which she was physically carrying at the time of her arrest, whether that possession was for the purpose of unlawful trafficking or for any other purpose.

11.  The facts as to the events on 28 November 2003 may be summarised briefly:  on that day police officers carried out an operation in relation to premises in Tokwawan.  An officer saw the wooden door and metal gate of the premises at 12/F,Kiu Fat Mansion open.  The first person seen to emerge was the Applicant holding a grey handbag who walked out of the flat.  She was followed by 2nd Accused who was holding a brown paper bag and a dark windbreaker.  The 2nd Accused closed the door and locked the metal gate.  The two then took the lift but were intercepted on the ground floor of Kiu Fat Mansion.  As police officers approached and revealed their identity the 2nd Accused pushed one of them and ran off, throwing the brown paper bag carried by him to the ground in the lift lobby.  He was later intercepted by police officers and returned to the lift lobby.

12.  The brown paper bag discarded by the 2nd Accused later was found to contain some seven tinfoil packs of dangerous drugs.  The 2nd Accused was searched and inside the front part of his underpants was found two resealable transparent plastic bags containing brown and grey tablets respectively.  In aggregate there was 1488 gms of a mixture containing 1049 gms of ketamine and 199 tablets containing 20.22 gms  of what I shall call for convenience Ecstasy.

13.  WDPC 5099, who had joined the chase of the Second Accused, also returned and took custody of the Applicant who was searched.  In her handbag were found two brown kraft paper bags and a pink paper bag eachcontaining a tinfoil packet of dangerous drugs.  These were later found to be 751 gms of a mixture containing 541 gms of ketamine.  It is to trafficking in this quantity to which she has indicated an intention to plead guilty.

14.  The Applicant was arrested and cautioned.  She replied  "Madam, I deliver those K Chai for someone. That's my job".  A further search resulted in the finding of a set of four keys in the handbag, which the Applicant indicated were for her home.  She was taken to her home, the premises from which she and the 2ndAccused had emerged earlier.  Two of the keys were used to open the gate and wooden door.

15.  The premises were searched after the 2nd Accused had arrived.  Two keys found on 2nd Accused were found to open the wooden door and metal gate of the premises.

16.  During the search two unsealed kraft paper bags containing five packets of dangerous drugs wrapped in tinfoil; a Marlboro packet containing a transparent plastic bag containing white powder;  a transparent plastic bag containing brown pills; a transparent plastic bag containing brown powder; a transparent plastic bag containing white granules; a transparent plastic bag containing yellow powder;  and a wad of kraft brown bags were found on top of a glass table in the sitting room.  The substances were subsequently analysed and found to contain the dangerous drugs set out in the second count, more ketamine and Ecstasy.

17.  The Applicant was then arrested and cautioned in respect of these drugs, to which she responded "Sze Tse, the K chai on the table are goods fetched by me and/from Sai Lo for delivery."   That is the translation of what was later recorded in the police officer’s notebook as having been said by the Applicant, presumably in Cantonese, at the time.  The translator has noted alternative translations for this response.  When, in a subsequent interview, the interviewing officer went over this passage with the Applicant what she quoted the Applicant as having said, in translation, was "Madam the K jai on the table are the goods I fetched from my Sai Lo for delivery".

18.  For the purposes of this application, at least, I am prepared to assume that the use of the word translated as "fetch" is not intended indicate that the Applicant had gone off herself to collect these items from the person she described as Sai Lo.  That does not appear to be the prosecution's case in any event.  The tenor of her reply, however, is of relevance in the light of her later interview and the submissions made on her behalf, for it clearly demonstrates two things: firstly, her knowledge of the nature of the contents of the bags immediately upon being taxed after the search and, secondly, that those drugs were there for the express purpose of delivery.

19.  Subsequent to her arrest the Applicant participated in a video recorded interview.  The prosecution relies upon the content of that interview.  It plainly is a "mixed statement" and would have to be put before the jury on that basis with the usual direction to them as to how they should have regard to its content.

20.  There is no presumption under the Dangerous Drugs Ordinance, Cap 134, which is of assistance to the prosecution in this matter.

21.  It is the Applicant's basic contention that the content of the interview must be looked at as a whole, that it is not appropriate to extract individual answers which are inculpatory whilst ignoring answers which are exculpatory.  Accepting that to be so, it is important not to lose sight of the way in which the jury will be directed to approach the content of that interview. 

22.  But it is equally true that, at this stage, I must look at all of the evidence, the totality of the admissible evidence, and assume that it is upon that that the jury will base its decision.

23.  The Applicant says that from that interview it is apparent that she accepts being in possession, for the purposes of trafficking, of the dangerous drugs which were found in her physical custody.  Her contention is that it is equally clear that she had no knowledge of the nature or quantity of any of the drugs found in the other two groups - in the custody of the Second Accused and in her flat. 

24.  She further says, as an alternative proposition, that even if the interview could be construed as showing that she did have knowledge of the nature of the substances in those other two groups, mere knowledge is insufficient to constitute possession:  that nothing in the interview shows that she had the necessary animus possidendi in respect of those two groups of drugs.

25.  Mr Clive Grossman, S.C., leading Miss Gekko Lan, on behalf of the Applicant, invited attention to a number of decisions dealing with the issue of intention in varying factual situations.  I intend no disrespect by not traversing each of those authorities.  I accept the proposition that simple knowledge, by itself, of the presence of either of the other two groups of drugs, in her flat or on the person of the Second Accused, would not be sufficient to found criminal liability in respect of the counts she now faces.  That, at least, seems to be a common theme running through the authorities.

26.  In short, what the Applicant says in the interview is that she had met the Second Accused in a disco approximately a month before this incident.  She had told him that she was unemployed and asked him to look out for employment for her.  On a subsequent meeting he told her that there was work available but that it "is something against the law".  She told him that she would do it, without his specifying the nature of the act, if it only took a short time.  He said that it would involve borrowing her flat to which she agreed and, in due course, gave him keys.  He said that she would receive $1000 upon the completion of "the job" every day.

27.  She said that she had been awoken by him knocking on the door of her room shortly after two o'clock on the afternoon of the offence.  The Second Accused had asked her to get up and to deliver goods for him, which she had previously promised to do.  She knew that by reference to "the goods" dangerous drugs were involved. This is She then saw several kraft paper bags on the table. 

28.  She said that she had seen "many bags of things on the table.  [She] saw one of the medicine bags containing some fing tau... [the Second Accused] said they were to be delivered.... also he showed [her] a chrome packet and said "It is K, which is also dangerous drug"".  She told the interviewing officer that this conversation had occurred between 2 and 3 p.m., or shortly after the arrival of the Second Accused.  She later confirmed that she had known "what kind of goods they were actually" at that time. 

29.  Looking at her interview as a whole on this issue, then, what she is saying is that although at first she might not known what was in the bags which had appeared on the table but that when she had looked she had recognised some of the content as fing tau tablets and been told specifically by the Second Accused that the bag or bags also contained K.

30.  She told the interviewing officer that the three kraft paper bags later found in her handbag had been given to her inside her flat by the Second Accused.  The Second Accused had told her that the bags he had given to her contained K.  She also said that the Second Accused himself had carried a paper bag that contained several bags but that she did not know how many bags that were, did not know what "the quantity" was and did not know what "their amounts" were.  She was asked whether she knew what was inside those paper bags which she replied "no idea".

31.  It must follow from the events which she outlined in her interview that after the Second Accused arrived at her flat and asked her to make deliveries for him, the dangerous drugs that he had brought with him were divided into three groups:  one was those which she physically carried out of the flat, the second was those which the Second Accused physically carried out of the flat and the third was those that remained in the flat.  After this division, the two of them and then left the flat, each carrying one portion of the drugs.

32.  It would seem to me that the real issue which the jury is going to have to decide in this matter is whether there was a joint-venture between the two of them to traffic in the total of whatever drugs were available at any given time or whether there was a joint-venture that irrespective of any quantity of drugs which the Second Accused may possess, she would only traffic in that portion of the drugs as was given to her by him from time to time.  And the jury is going to decide that issue by reference not solely to the content of her statement but by reference to that content as well as all the other evidence.

33.  The second scenario postulates the situation that the Second Accused would have possessed, in the flat of the Applicant, with her knowledge and consent, quantities of dangerous drugs, to her exclusion, notwithstanding the fact that those drugs were present, according to her immediate response to her second caution, for the purposes of being delivered and notwithstanding the fact that she was employed by the Second Accused to deliver drugs.

34.  Mr Jackson Poon, who appears in this application only for the prosecution, contends that it is clear that there was an agreement between them previous to the date of the events.  He particularly invited attention to the entry act 153 of the transcript of the interview where the Applicant says "because he had said before - - because he knew that I lived alone, he said that goods... would be stored and therefore a while, that is to say, temporarily." 

35.  Despite Mr Grossman’s urging to the contrary I agree with Mr Poon’s contention especially when the following four entries are considered.  The Applicant is asked whether the Second Accused said explicitly what kind of goods they were to which she responds "at that time, he did not.  He just told me that the act was against the law."  It is plain from this that she was referring to the meeting between them when he told her that he had work for her, prior to the date of the events.

36.  In my judgement, a jury could properly be directed, on the evidence as it now stands, that it would be open to them to find that the Applicant and the Second Accused agreed that the Second Accused would bring to the Applicant's flat items which would be stored there and then distributed by one or both of them under the direction of the Second Accused.  It would most certainly be open, in my judgement, to the jury to find that she knew the nature of the items which, on the day of the events, the Second Accused brought to her flat. 

37.  It would then be open to the jury to draw the irresistible inference that the Applicant intended to possess all of those dangerous drugs, that she possessed the entire quantity of drugs for the purpose of trafficking in them.

38.  It follows that, on the evidence as it now stands, there is a prima facie case for the applicant to answer in respect of all of the dangerous drugs referred to in the first count as well as those referred to in the second count.  The application is accordingly dismissed and the applicant is to be arraigned on both counts.

39.  In the light of the way the charges are framed at present, not only are directions to the jury on the first count likely to be cumbersome but, assuming that the applicant does plead guilty to possession of a portion of the drugs referred to in the first charge, the sentencing exercise may be unnecessarily complicated.  The prosecution should give consideration to reframing the charges and should do so without delay given the proximity of the trial date.