HKSAR v. CHAU YUI MING

CACC 441/2015

[2019] HKCA 54

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 441 OF 2015

(ON APPEAL FROM HCCC NO 339 OF 2015)

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J U D G M E N T

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Hon Macrae VP:

1.  The Court refused leave to appeal in this matter and dismissed the appeal by a majority (Macrae VP and Pang JA; McWalters JA dissenting).

2.  I have already stated my views about the propriety of alleging a single count (or charge) of trafficking on an indictment (or charge sheet) where it is the prosecution case that the defendant was trafficking in different drugs, which are found in different places, most typically, as in this case, on his person and at his home from which he is seen leaving.  Here, the prosecution case was that the applicant was trafficking in all of the drugs particularised: the applicant’s case was that he was in possession of none of the drugs, not even for his own consumption. In those circumstances, and given the tactical decision that must have been made as to the approach to be taken before the jury, I do not see any unfairness or prejudice to the applicant in either the particulars of the count or the judge’s very favourable direction that if they were not sure that the applicant was trafficking in the drugs in the sling bag, then they should acquit him altogether.

3.  However, I am nevertheless minded to grant the Certificate sought.  First, the Court was divided in its resolution of the appeal against conviction.  Although I do not consider that this case provides a particularly good example to illustrate the complaint, given the stark way the battle lines were drawn at trial, and the very favourable direction the applicant received from the judge, one member of the Court was of a different view.

4.  Secondly, it will be an obvious matter of concern to the prosecution, as it will to trial courts, if counts or charges framed in the present way for the purposes of trial are judged to have been wrongly drawn.  The circumstances of this case are by no means unique: indeed, defendants are quite often arrested as they leave home in possession of what the prosecution alleges are drugs drawn from a larger stock of drugs subsequently found inside their premises.

5.  Less than a week after delivering judgment in the present matter, this Court heard another appeal, namely HKSAR v Yeung Chun Hin[1], in which a single count had also been alleged in similar circumstances where the appellant was found in possession of a sizeable quantity of “Ice” on his person as he left his home, with a larger stash of “Ice” and midazolam being found inside his premises.  Pang JA has also drawn my attention to a recent appeal against sentence in which he was involved, namely HKSAR v Tsang Sin Yi[2], where the applicant was charged in a single count of trafficking with a relatively small quantity of Ice in her backpack, and a much larger quantity of Ice and cocaine inside her flat; a charge to which she pleaded guilty.

6.  In neither case, of course, was this point argued.  I doubt very much that these are the only occasions when the prosecution have proceeded by way of a single count or charge in such circumstances.

7.  Accordingly, if the count in this case represents the wrong way for the prosecution to proceed in such cases, then the sooner the matter is rectified the better. 

8.  It is right to point out that the prosecution do also separately charge in respect of drugs seized on a defendant’s person and drugs seized in his premises: see, for example, HKSAR v Mushtaq Zeeshan[3], where the applicant was alleged to be returning home with some drugs in his possession.  More dangerous drugs were found in the premises.

9.  I do not consider either approach by the prosecution to be wrong.  It is surely up to the prosecution who bring the case as to what they allege, and to frame their allegation accordingly.  Where the prosecution case is that the defendant is leaving his home to deliver a consignment of dangerous drugs from a larger store which he keeps at home, I do not see that a single charge covering all of the drugs in question is objectionable.  Indeed, it may be argued that it more accurately represents the prosecution case.

10.  Nevertheless, for the reasons I have outlined above, I would grant a Certificate in the terms sought.

Hon McWalters JA:

11.  I agree that a Certificate should be granted in the terms sought.

Hon Pang JA:

12.  I agree with the judgment of the Vice President.