HKSAR v. CHAN PUI WA

CACC 96/2022

[2024] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 96 OF 2022

(ON APPEAL FROM HCCC NO 224 OF 2020)

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J U D G M E N T

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1.  On 2 June 2022, following a trial before Alex Lee J (the judge) and a jury the applicant was convicted of trafficking in a dangerous drug, namely 2,734 grammes of a solid containing 470.3 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 7 June 2022, the judge sentenced the applicant to 17 years and 8 months’ imprisonment.

2.  On 7 July 2022, the applicant filed a notice for leave to appeal against his conviction out of time. It was filed late for only a short period, and the court accepted his explanation that he miscalculated the time limit for filing the application.

The brief facts

3.  It was alleged that the applicant was a drug courier who had agreed with a person called “Ah Yin” to travel to Colombia to collect the dangerous drugs in question and bring them back to Hong Kong. It was also alleged that if the applicant did not know the purpose of the trip at the time he set off from Hong Kong, he would have known it by the time of his return to Hong Kong because of the events that unfolded in Colombia[1].

4.  On 24 August 2019, the applicant was intercepted by Customs officers at Hong Kong International Airport after his return from Taiwan. The applicant had no check-in luggage, but he had a hand carry suitcase. Custom officers searched his suitcase and found six photo albums that were laminated and thicker and heavier than usual. A further examination of the laminated pages found the cocaine powder in question hidden inside. He was arrested and cautioned, and in response, he said he was given the photo albums in Colombia but denied knowledge of the dangerous drugs. He said he did not know to whom he would give the albums upon arrival, and he was unsure whether he would receive any reward.

5.  The applicant had stayed in Colombia between 5 July and 20 August 2019 before returning to Hong Kong. A Customs officer (PW5) retrieved forensically from the applicant’s iPhone five photographs, which included images of handwritten itineraries and instructions that had been deleted on 29 July 2019 (exhibits P46 and P47) and two images of photo albums that had been deleted on 20 August 2019 (exhibits P48 and P49).

6.  The applicant testified in his defence but called no witnesses. He said he was doing a favour for his friend, Ah Yin, to deliver the folders containing the photo albums from Colombia to Hong Kong. He did not know that dangerous drugs were concealed in the photo albums. He said that he had sent the two photographs of the photo albums taken with his iPhone to Ah Yin, which he is subsequently deleted to maintain the smooth running of his iPhone. He got a reply from Ah Yin via WhatsApp requesting him to bring the photo albums back to Hong Kong.

The grounds of appeal

7.  Three grounds of appeal are advanced on behalf of the applicant:

Ground 1: “The Judge erred in commenting the D [the applicant] failure to mention any name under caution when he was asked by Customs Officer to whom the photo albums would be given (AB, 38A-C). The Judge further erred in commenting that during the post-record, ‘the D was given a chance to make corrections or supplements as he would like, the D did not make use of that opportunity to tell the Customs the matter about Ah Yin’ (AB, 38C-G).”

Ground 2: “The Judge erred in inviting the Jury to disbelieve the D’s testimony about receiving WhatsApp message from Ah Yin in his return trip when he was in Amsterdam, when both the Prosecution and Defence had not explored this area in their examination of PW5 or the D.”

Ground 3: “In the circumstances of the case, the conviction is unsafe and unsatisfactory.”

Ground 1

8.  The judge’s impugned remarks are taken from the passage of his summing-up when he was dealing with the evidence of one of the Customs officers (PW2). He said:

“PW2 says that at this point he indicated to PW1 that he wanted to split open some pages. At the time, the defendant was sitting just opposite PW2. PW1 was standing next to the defendant. PW2 pointed at the photo albums and asked the defendant what they were and the defendant answered ‘photo albums’. PW2 asked if they belonged to him and the defendant said someone gave them to him. PW2 asked where did that happen and the defendant said in Colombia. When the defendant was asked to whom the photo albums would be given, he said he did not know.

Now, you will remember that PW2 split open one of the pages with a cutter and he found some white powder inside. That is photo 10, on tab 6. PW2 says he collected some of the white powder and applied to the powder a rapid drug test which yielded a positive result for cocaine. Then in the presence of PW1, PW2 declared arrest of the defendant and cautioned him. The defendant replied that he understood.

A series of questions and answers then ensued. Being questioned, defendant told PW2 that the black suitcase belonged to him, that the photo albums were given to him by someone in Colombia and when asked to whom he would give them upon arrival, the defendant said he did not know. When asked whether he was remunerated the defendant said he was not sure.

The dialogue between PW2 and the defendant was subsequently reduced into writing and recorded in PW2’s notebook, P40, at tab 5. You have been given a copy of that notebook and you will remember the PW2 read it out aloud in court. You may note that the accuracy of that record in P40 was not subject to any challenge at all in cross-examination.

Members of the jury, concerning the conversation that PW2 had with the defendant during the examination of the luggage, you will remember that the defendant did not mention any name, including Ah Yin, even though he now tells you that the photo albums were intended for Ah Yin.

Hours later in the afternoon, when PW2 was post-recording his conversation with the defendant and when the defendant was given a chance to make any corrections or supplements as he would like, the defendant did not make use of that opportunity to tell the Customs the matter about Ah Yin, although he did confirm that he obtained the folders contained in the photo albums in Colombia. The defendant explains this omission in court by saying that his brain went blank after the arrest. Now, it is a matter for you to decide whether this explanation of his is or may be true.”[2] (Emphasis added)

9.  The above italicised passage is the judge’s impugned remarks but when considered in context, they are reasonable and do not justify the complaint under this ground.

10.  The applicant did not remain silent at the time of his arrest and caution. He told PW2 that he had obtained the photo albums from someone in Colombia to pass them on to someone in Hong Kong, whom he did not know. The post-record of the applicant’s oral cautioned statement was produced (Exhibit P40 and P40A) by way of an admitted fact[3]. It records, amongst other things, that:

“… I said to you, ‘I now suspect that you may have offended the Dangerous Drug Ordinance. I now arrest and caution you.

That is, you are not obliged to say anything unless you wish to do so but what you say may be put into writing by me and given in evidence. Do you understand?’ You answered, ‘I understand.’ I pointed to the black suitcase and asked you, ‘To whom does this black suitcase belong?’ You answered, ‘It’s mine.’ I asked you, ‘Are these six photo albums yours?’ You answered, ‘Someone gave me.’ I asked, ‘Where were the photo albums given to you?’ You answered, ‘Columbia.’ I asked you, ‘Who will they be given to in Hong Kong?’ You answered, ‘I don’t know.’ I asked you, ‘Are you getting any reward?’ You answered, ‘I am not sure.’ I then pointed to the white powder and asked you, ‘What are these?’ You answered, ‘I don’t know.’ At about 1520 hours on 24 August 2019, I read to you, CHAN PUI WA, in Cantonese the above statement, and then let you read it again once. I reminded you that you could alter, correct or add anything. You, CHAN PUI WA, indicated ‘no change’ to me after reading. So I asked you, CHAN PUI WA, to write down the following declaration and sign in confirmation. I, CHAN PUI WA, have read this statement. I understand that I may alter, correct or add anything I wish. The contents in this statement are true, and I am willing to make this statement.”

11.  The statement that the applicant did not know to whom he was to give the albums was inconsistent with his evidence in court, that the “photo album delivery” had been prearranged by Ah Yin, a known acquaintance, and that he was to take the photo albums from Colombia to Ah Yin in Hong Kong.

12.  As pointed out by the judge to the jury in his summing-up[4], the difference between the applicant’s cautioned oral statement and his evidence in court was relevant to the jury’s determination of his credibility.

13.  In such circumstances, it was permissible, as envisaged by the Court of Final Appeal in Lee Fuk Hing v HKSAR[5], for the prosecution to comment upon the applicant’s cautioned oral statement with his evidence in court. The case of the HKSAR v Cheung Oi Hin[6] is not apposite.

14.  As pointed out by Ms Claudia Ko, for the respondent, no objection had been raised by Mr Leung (who was trial counsel) about the judge’s directions on this issue, who urged the jury to take into account the applicant’s words and conduct at the time of arrest when seeking to portray him as a “frank” innocent agent in this case[7].

15.  Mr Leung also argued that the judge was wrong to say to the jury that the applicant had a chance to correct or supplement the post-record statement, in which he stated that he did not know to whom he was to give the albums in Hong Kong, because the applicant was only confirming the accuracy of the previous questions and answers upon caution. The post-record was an admitted fact, and no issue was taken as to its admissibility at trial. In his evidence, the applicant did not testify that he believed when he signed the declaration of the post-record, he was only confirming the accuracy of what had been previously said by him. In the declaration to the post-record, the applicant declared that he had read the statement and understood that he could “alter, correct or add anything I wish” and that the “contents in this statement are true”.

16.  Mr Leung argues that it is open to interpretation that the applicant, when acknowledging and signing the post-record, was merely confirming what he had previously said upon arrest and caution was accurate. This is not supported by the evidence, nor by the wording of the post-record.

17.  This ground of appeal is not reasonably arguable.

Ground 2

18.  As submitted by Ms Ko, the complaint under this ground does not fully accord with the state of evidence and the defence case at trial.

19.  In his oral testimony, the applicant claimed that after he had taken two photographs of the photo albums, he sent them to Ah Yin via WhatsApp before his flight from Bogota to Amsterdam. Upon arrival in Amsterdam, he found Ah Yin’s reply text message that he had to bring the photo albums back to him in Hong Kong[8]. Mr Leung, in his closing speech, reminded the jury of the applicant's contention that apart from the deleted photographs, “there was still photos in the WhatsApp”[9]. Accordingly, the defence sought to impress upon the jury that there were relevant WhatsApp communications between the applicant and Ah Yin on the applicant’s telephone, apart from those discovered by PW5.

20.  The defence contention was at odds with PW5’s evidence that apart from the five deleted photographs, there was no other relevant evidence on the applicant's iPhone. PW5’s evidence, if accepted by the jury, was that, apart from the five photographs, there was no other relevant information or material on the applicant’s iPhone when it was examined forensically [10]. The judge duly reminded the jury of the difference in the evidence between PW5 and the applicant. He also invited them to consider the possibility that the difference may have been due to a mistake by PW5 when examining the applicant's iPhone[11]. He said:

“… You will remember that there is an admitted fact that the two pictures of the photo albums were deleted from the defendant’s mobile on 20 August 2019. When the defendant was asked why he deleted the two pictures before he had received any reply from Ah Yin, the defendant said it was his practice or habit to delete unwanted pictures so as to maintain the smooth running of his mobile.

Defendant says that when he did that, he did not know whether his WhatsApp message to Ah Yin had been read by the other side. He said, however, that after he had landed in Amsterdam on 22 August, he found a text message from Ah Yin asking him to bring the photo albums back. Now, members of the jury, you will remember PW5’s evidence, that is, the inspectors evidence that he was tasked to see if there was any evidence relating to this case in the defendant’s iPhone.

In cross-examination by Mr Leung, PW5 was asked and he confirmed that he spent an hour searching for relevant evidence, but apart from the 5 images now in your bundle he could not find any other things relevant. This is a direct quote. Would PW5 have missed the text message which the defendant says he received from Ah Yin? Is what the defendant says about the text message true or may be true? Members of the jury, it is a matter entirely for you.”

21.  Mr Leung further argued that PW5 had not stated he examined the WhatsApp communications on the iPhone. PW’s evidence was that he examined the iPhone for information relevant to the case against the applicant. He was not cross-examined about his examination of the iPhone in respect of WhatsApp communications. Considering the state of the evidence, the judge correctly summarised the evidence and the issue that the jury had to consider.

22.  As rightly pointed out by Ms Ko, the judge’s direction was factual and fairly addressed the difference in the evidence between PW5 and the applicant.

23.  I am not persuaded that this ground is reasonably arguable.

Ground 3

24.  There is no basis on which to argue that the conviction was unsafe or unsatisfactory.

Conclusion

25.  It follows for the foregoing reasons that the grounds of appeal are not reasonably arguable, and leave to appeal against conviction is refused.

26.  The applicant is reminded of his right to renew his application for leave to appeal against his conviction out of time to the Court of Appeal, but he is also warned of the consequence of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.