HKSAR v. CHEUNG YUK KEUNG

CACC 498/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 498 OF 2006 

(ON APPEAL FROM HCCC 96 of 2006) 

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Reasons for judgment

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 3 January 2006 at about 4.55 pm, the applicant – Cheung Yuk-keung and another person surnamed Lai (“Lai”), after alighting from a taxi, entered No 260 Ho Chung New Village in Sai Kung (“the premises”). At 5.45 pm the same afternoon Lai left the premises on his own.

2.  The police entered the premises and found 145.18 kilogrammes of a powder containing 122.36 kilogrammes of ketamine in carton boxes lying openly in different parts of the premises with other paraphernalia, including sealing tapes, cling wrap, transparent plastic bags, scales and an electric vacuum cleaner. The retail value of the ketamine was about $26.4 million. The applicant’s fingerprint and DNA were present in the premises.

3.  The prosecution alleged that the applicant had in his possession 2.93 grammes of a powder containing traces of ketamine and that he was also trafficking in the 122.36 kilogrammes of ketamine found inside the premises.

4.  The applicant appeared before Deputy Judge Toh sitting with a jury on an indictment consisting of a charge of trafficking in a dangerous drug and a charge of possession of a dangerous drug. The applicant pleaded not guilty to both charges.

5.  The trial commenced on 21 November 2006 with a voir dire to determine the admissibility of the applicant’s confessions contained in a police notebook and a record of interview. The voir dire lasted two days until 22 November 2006. Before the applicant gave evidence in the voir dire, the jury was empanelled on 22 November 2006. The judge ruled the applicant’s confessions admissible, and the trial proper started on 23 November and finished on 29 November 2006 when the applicant was convicted as charged.

6.  On 30 November 2006, the judge sentenced the applicant to concurrent terms of 30 years and 6 months’ imprisonment respectively for the trafficking and possession charges.

7.  The applicant sought leave to appeal against both conviction and sentence. On 20 May 2010, we dismissed his application for leave to appeal against conviction, but granted him leave to appeal against sentence. Treating the application as the appeal proper, we allowed his appeal against sentence and reduced it from 30 years to 25 years. We indicated that we would hand down our reasons and this we now do.

The Prosecution Evidence

8.  Apart from the undisputed evidence set out in the introductory part of this judgment, the prosecution adduced evidence to show that the applicant took out a brown wrapped package from the boot of the taxi before using keys to open the door to the premises. 

9.  After the police entered the premises, they asked the applicant for his identity document and he pointed to a bag, which contained his wallet and a small packet containing 2.93 grammes of a powder with traces of ketamine.

10.  The applicant was arrested and cautioned. The applicant said that Lai had given him the small packet of ketamine found in his bag for a try. He further said he was watching over the goods for someone and that it had nothing to do with him. When questioned about the carton boxes of ketamine found inside the premises, the applicant said;  “Ah Sir, Yip Hung (“Yip”) gave me $1,000 a day to sleep here to watch goods. Nothing to do with me.” When asked to explain what he meant by “watch goods”, the applicant further said, “It means ‘kei chai’ dangerous drugs.”

11.  The applicant’s admission under caution was post-recorded in the notebook of DPC 33759, which was produced as P139.

12.  Shortly after mid-night on 4 January 2006, the police conducted a video interview of the applicant at the Narcotics Bureau office, which lasted for about an hour. The record of the interview, P141, was produced as evidence.

13.  At the video recorded interview, the applicant repeated what he had said at the time of his arrest and said he knew “K Chai” was a dangerous drug. He also said that he was told by Lai not to tamper with the ketamine inside the premises and he was aware that the six transparent bags in the master bedroom contained ketamine.

14.  The applicant told the police that after receiving instructions from Yip on 3 January 2006, he went to Prince Edward MTR Station to meet Lai and together they went to buy craft paper, Kraft tape, oilpaper and some milk powder before returning to the premises in Sai Kung by taxi.

15.  The applicant said that after they entered the premises, Lai, with gloves on his hands, handled “the things” in the master bedroom and when he came out, he gave the applicant a packet of “K” and said to him, “Ah ha, watch the stuff attentively. I am leaving”. The applicant said Lai also told him not to tamper with the ketamine in the premises.

16.  The applicant admitted that it was Yip and his group who gave him $1,000 a day to sleep at the premises to watch over the ketamine. He said he had bought some furniture, but had slept in the premises only for a few days. However, the applicant said he had been absent from the premises for about 10 days and when he returned on 3 January 2006, he found a lot of new items that he had no knowledge of.

17.  The applicant said he had known Yip for two to three years and that he came across him again in a mainland Disco when he told Yip that he needed a job. Later Yip told him to work for $1,000 a day for about ten odd days and that he should rent a house. The applicant then looked for a house, which Yip found suitable. Yip then signed a tenancy agreement to rent the premises at the monthly rent of $6,000 a month.

18.  They then had some window curtains made and Yip further gave him $4,000 to buy some furniture before telling him to sleep in the premises to watch over the things. The applicant said Yip subsequently told him that it was “Keh” dangerous drugs. The applicant further said that he did not expect that the quantity was so large and when he saw there were so many bags of ketamnine, he was frightened and did not know what to do.

The Defence Case

19.  The defence case was that the applicant did not tell the officer what was recorded in P139, and that he signed it and wrote down the declaration because he had been assaulted, threatened and induced by the police. The defence suggested that the officer hit the applicant and told him that his family would be in trouble, but if he cooperated, he could be made a prosecution witness.

20.  The defence further suggested that the police taught him how to answer the questions put to him at the video recorded interview before the interview started.

21.  When giving evidence in his defence, the applicant said he first met Yip in 2000 when they were running different gambling establishments. The applicant said he met Yip again in a disco in Shenzhen and they then met occasionally when he told Yip that he was looking for a job. Yip then told him that he had some friends operating a gambling establishment of “pai kau” or baccarat in Hong Kong and asked if the applicant was interested. Later Yip told him that things were ready and that he needed to find a place in Sai Kung.

22.  The applicant then went to look for a place in accordance with Yip’s specifications, namely it should be quiet without too many neighbours and be on the ground floor with a car park so that clients could park their cars. The applicant found the premises and Yip signed the tenancy agreement. Thereafter Yip made the curtains and as there was already furniture, Yip just told him to buy a TV and a refrigerator.

23.  The applicant said he stayed in the premises for two or three days and he went to China. When he returned to Hong Kong on 2 January 2006, he did not go to the premises as he had given the keys to Yip. On 3 January 2006, he went by minibus to Sai Kung, but Yip told him to go and meet his friend first because his friend had the keys.

24.  The applicant then went to Prince Edward Road MTR Station where he identified Lai based on Yip’s description. They then went to buy various items, including some milk powder and medicine before taking a taxi to the premises.

25.  The applicant said it was Lai who opened the door of the premises with keys and they then entered. The applicant said at that time he was carrying only sports shoes. The applicant accepted that his fingerprint and his DNA were present on a blue mug in the living room and in the bathroom respectively as he had stayed in the premises for two to three days in the past.

26.  The applicant said after Lai left and when he was talking to his friend on the mobile phone at the doorway, the police came up to him and treated him violently; pushing, gripping and grabbing him around the neck before pushing him hard onto the floor.

27.  The applicant further alleged that the police punched and hit his face, causing his glasses to fall to the ground. He was then asked where the stuff was and the applicant only said he did not know what they were talking about. The police then told him not to pretend and kept asking him where the “kei chai” was. The applicant maintained that he did not know and then someone yelled out that they had found the drug.

28.  The sergeant then told the applicant to co-operate, saying that if the applicant provided information about his boss, he would be turned into a prosecution witness as the police knew he was just a small potato and not the boss and that the police was only interested in the big fish.

29.  The applicant said he decided to co-operate, as he believed the sergeant, although up to the time when he was charged and brought before the magistrate, he still had not made any complaint. When he was asked why he did not complain about the police brutality earlier, he said that the counsel representing him was only someone called up to take the place of his original counsel at a short notice.

30.  The applicant was adamant that the contents of the police notebook P139 were all made up by the police officer and he signed and wrote the declaration on it because he thought the sergeant was helping him and would turn him into a prosecution witness. He also said that at the Narcotics Bureau office, he agreed to be coached by the police officers about what to say at the video-recorded interview. He said that the coaching lasted some two hours before the video-recorded interview started and that was why he was able to remember the details. He even suggested that the interviewing officer pressed to stop the clock and said to him that if what he said was not okay, they would have to do it again.

Grounds of Appeal

31.  The applicant was not legally represented and there had been a number of adjournments because the applicant wanted time to get legal representation and/or transcripts of the proceedings.

32.  In the many letters written to the court, the applicant had raised many issues/allegations, including the judge’s bias against him, the improprieties of prosecuting counsel, the incompetence of his counsel, Mr Steve Chui in defending him, the non-disclosure by the prosecution and other procedural improprieties.

33.  The applicant suggested that the judge had improperly and wrongly directed the jury, and had hurried the parties to finish the case, as she needed to take a long leave and had to deal with another case on 4December 2006. The applicant alleged that, despite requests by Mr Steve Chui, the prosecutor had failed and/or refused to provide the identity and movement of Lai.

34.  The applicant suggested that the judge had not been fair to Mr Steve Chui, by arguing with him and interfering with his submissions, resulting in Mr Chui feeling frustrated and therefore was unable to defend the case in his best interest. The applicant implied that he had not been given a fair trial.

35.  The applicant alleged that Mr Steve Chui had not properly advised him on his rights and had failed to follow his instruction to seek documents from the prosecution for fear that the judge’s leave would be affected.

36.  The applicant suggested that the judge was wrong not to accede to his request of a Chinese trial and had decided to empanel the jury before the voir dire had been completed.

37.  In his oral submission, the applicant said that the police was wrong to say that he had not been taken out of the police station when there were documents to show that doctors at the Ruttonjee Hospital attended to him in the morning of 4 January 2006.  He also said that the judge was wrong not to direct the jury on a majority verdict of 4 to 3.

38.  The applicant sought to adduce fresh evidence to demonstrate that he was physically unable to carry heavy items in order to challenge the prosecution case that he had taken out a large brown package from the boot of the taxi before entering the premises on 3 January 2006.

39.  Because of the applicant’s complaints, Mr Steve Chui had, pursuant to the direction of the court, filed an affidavit responding to the applicant’s allegations. Mr Chui rejected the applicant’s complaints against him. Mr Chui said he had fully explained to the applicant his right to give and call evidence, both in the voir dire and the trial proper. He said it was the applicant’s decision to testify, both in the voir dire and the trial proper, but call no witness, and that he had run the applicant’s case in accordance with the applicant’s written instructions.

40.  Mr Chui stated that he would be able to produce the applicant’s written instructions, subject to the applicant’s waiving his privilege.

Discussion

41.  We were grateful to Mr Robert Lee SC, counsel for the respondent, for providing us with a summary of the applicant’s complaints and his response thereto in his written submission.

42.  There was no record of the applicant applying for a Chinese trial and in any event, the court was free to decide whether to conduct the trial in any one of the official languages. As part of the case management and in order not to waste time, the judge’s decision to empanel the jury before the conclusion of the voir dire could not be the subject matter of any valid complaint.

43.  Having had the contents of Mr Chui’s affidavit explained to him, the applicant indicated that he had no question that he wished to put to Mr Chui. We were fully satisfied that the applicant’s complaints against Mr Chui were completely unfounded. We were satisfied that the applicant had been properly and competently defended.

44.  The judge was obliged to ensure that the trial proceeded fairly and expeditiously, and in doing so, she might have to clarify or disallow counsel’s questions or the evidence of witnesses.

45.  In deciding if a defendant had been given a fair trial,“the question which the Court of appeal must ultimately ask itself was – might the case for the  defendant as presented to the jury over the trial as a whole, including the adducing and testing of the evidence, the submissions of counsel and the summing up of the judge, be such that the jury’s verdict might be unsafe? If that was so and there was a possibility of a denial of justice, then the Court of Appeal ought to interfere.” (See the head note in R v Matthews (1984) 78 Cr App R 23)

46.  We had considered all the matters raised by the applicant, we were satisfied that no informed bystander listening to the case would say that the applicant had not had a fair trial.

47.  It was never the prosecution case against the applicant that he had to move any heavy item. The evidence against him was that he took out a brown package from the boot of the taxi after alighting from it and then carried it to the door of the premises. The applicant’s defence was that the item he took from the boot of the taxi contained shoes that he had just bought. The prosecution alleged that the applicant was in control and custody of the large quantity of ketamine found in the premises. The applicant admitted, when cautioned, that he was paid to “watch” over them for someone.

48.  We failed to see the relevance of his suggestion that he was physically unable to move heavy items and there was no proper basis for us to receive any fresh evidence on this issue.

49.  A majority verdict of 4 to 3 was not an acceptable verdict and the judge was right to tell the jury that if they could not be unanimous, the court would only accept a verdict of 6 to 1 or 5 to 2, guilty or not guilty. In any event, the jury had unanimously convicted the applicant on both charges and we failed to see the relevance of his complaints in connection with the judge’s direction of a majority verdict.

50.  We were satisfied that none of the applicant’s complaints had been made out.

51.  The case was relatively a simple one. There was no dispute that the applicant was present in the premises where a huge quantity of ketamine valued at over $26 million was found in carton boxes lying quite openly in different parts of the premises. The applicant had keys and was returning to the premises with Lai.

52.  The police found in the applicant’s possession a small quantity of ketamine. There was fingerprint and DNA evidence linking him to the premises.

53.  The applicant had, on the evidence before the court, repeatedly admitted that he was aware of the presence of the ketamine in the premises and that he was told to watch them for a daily sum of $1,000. The applicant’s admissions were recorded in the police notebook – P139, in which the applicant signed and wrote out a declaration confirming the truthfulness of its contents. The applicant repeated his admissions in a video recorded interview.

54.  The jury was entitled to reject the applicant’s evidence and to conclude on the prosecution evidence that the applicant was in possession of the small quantity of ketamine, the subject matter of the 2^nd charge, and that he was trafficking in the large quantity of ketamine found in the premises, the subject matter of the 1^st charge.

55.  We had considered the judge’s summing up to the jury. We were satisfied the summing up was comprehensive, accurate and fair.

56.  In our view, the applicant was properly convicted as charged and there was nothing unsafe or unsatisfactory about the conviction. We therefore dismissed his application for leave to appeal against conviction.

Sentence

57.  The applicant trafficked in over 120 kilogramme of ketamine with a street value of about $26.4 million. At the time of the offence the applicable sentencing guideline for trafficking in ketamine was set out in HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46, namely for trafficking in over 800 grammes of ketamine, the starting point was 8 years and upwards.

58.  Mortimer VP observed at p 55 I-J of the judgment:

“An arithmetic progression for trafficking in much higher quantities than 800 grammes should be avoided. The sentence in such cases must be entirely within the discretion of the judge depending upon the circumstances.”

59.  Whilst the quantity is invariably the most important factor for sentence in a drug trafficking case and there must be a meaningful distinction between traffickers who deal in a few kilogrammes and tens of kilograms of ketamine, the court, in deciding an appropriate starting point, must take into consideration the possibility of an even worse case involving even larger quantities of drug.

60.  In HKSAR v Yeung Kwok Ming (unreported CACC 224/2007), the accused trafficked in 426 kilogrammes of ketamine and was sentenced to 30 years’ imprisonment after trial. The sentence was confirmed on appeal.

61.  In HKSAR v Leung Wai-man (unreported CACC 24/2007), the accused pleaded guilty to one count of possession of 33.21 grammes of ketamine and one count of trafficking in 167.3 kilogrammes of ketamine. He was sentenced to 12 months and 20 years’ imprisonment respectively. On appeal, the 20-year sentence was reduced to 18 years, representing a starting point of 27 years.

62.  In paragraph 13 of the judgment, this court (differently constituted) observed:

“In our view the starting point of 30 years’ imprisonment in this case was too high, given that the same starting point in Yeung Kwok Ming for a quantity of drug nearly three times greater attracted no adverse comment from this court. Further the starting point of 30 years’ imprisonment taken by the judge leaves too little flexibility for the sentence of even worse cases involving much greater quantities of ketamine, and involving defendants who are the major culprits.”

63.  Giving that the tariff laid down in Lee Tak-kwan (supra) had been substantially revised upward in S for J v Hii Siew Cheng [1009] 1 HKLRD 1, the aforesaid observation would carry even more weight.

64.  The quantity of ketamine involved in the present case was 122.26 kilogrammes, less than one-third of that involved in Yeung Kwok Ming (supra), and about one-third less than that involved in Leung Wai Man (supra).

65.  Mr Robert Lee SC argued that the applicant’s role was more significant than that of the defendant in Leung Wai Man. He suggested that the applicant was not merely a watchman as he had admitted, as he had bought and carried to the premises some packaging materials, and had looked for the premises and arranged to have it rented by Yip.

66.  We were not persuaded that those factors should have a significant impact on sentence. After all, in a drug trafficking case, the fact that a defendant plays a lesser role will hardly be a mitigating factor.

67.  We were satisfied, in all the circumstances of the case, including the fact that the applicant only had one previous conviction of assaulting a police officer, that a starting point of 25 years’ imprisonment would be adequate.

68.  We therefore granted leave to the applicant to appeal against sentence. Treating the application as the appeal proper, we allowed the appeal and reduced the sentence on the 1^st charge to 25 years’ imprisonment, which would also run concurrently with the 6-month sentence on the 2^nd charge. The applicant’s total sentence would therefore be reduced from 30 years to 25 years.