HKSAR v. MA KA HO

CACC 390/2016

[2018] HKCA 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 390 OF 2016

(ON APPEAL FROM HCCC NO 438 OF 2015)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant faced a single count of trafficking in 5,928 grammes of a powder containing 3,261 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the offence. On 7 December 2016, after a trial before Deputy Judge Wilson Chan (“the judge”) and a jury, the applicant was unanimously convicted and subsequently sentenced to 20 years and 3 months’ imprisonment. He now applies for leave to appeal against conviction only.

2.  By 9 October 2018, despite the order of Cheung CJHC that written submissions be filed no less than 28 days before the hearing of the appeal, the Court had received nothing from the applicant.  Instead, at the inception of the appeal hearing, he produced four documents to the Court written in English, namely, an application to file eight amended grounds of appeal against conviction in substitution for those attached to his Form XI Notice of appeal dated 22 December 2016; an application to adjourn the hearing pending the appointment of counsel to represent him; amended grounds of appeal against conviction; and an application for legal aid.  All documents were dated 30 September 2018.

3.  As a matter of history, the applicant has made no less than four applications for legal aid, all of which have been refused; the refusals being on 20 March 2017, 7 July 2017, 26 June 2018 and 7 September 2018.  He had further made an application for legal assistance to the Clinical Legal Education programme of the Faculty of Law, University of Hong Kong, which was rejected on 26 February 2018.

4.  Given that this offence took place more than 3½ years ago, for which the applicant was convicted nearly 2 years ago, we considered that the appeal should be dealt with expeditiously as far as it was practicable to do so.  Since the applicant was unable to obtain legal representation, but had furnished us, albeit late, with grounds of appeal and supporting arguments, we considered that we were in a position to hear the appeal, in which the applicant would have to represent himself.  In view of the history of this matter, we did not agree to adjourn the hearing nor were we prepared to grant the applicant legal aid, but we nevertheless did adjourn the hearing until 11 October at 11:30 am for the respondent to read and reply in writing to the applicant’s amended grounds of appeal and submissions, and for the applicant to prepare himself to present his appeal.  Further, we did not accede to his application for legal aid.  However, we made it clear that if it became apparent during the course of argument that we would benefit from hearing submissions from counsel on behalf of the applicant, we would adjourn the hearing in order that counsel could be duly assigned to him.  In the event, that did not become necessary.

5.  On 11 October 2018, following submissions from the parties, we reserved judgment, indicating that we would hand down our decision in due course.  This is our decision.

The prosecution case

6.  It was not disputed that the applicant was the registered owner of a silver Mercedes Benz motor car bearing registration number RZ 1836 (“the car”)[1]. The prosecution alleged that on 16 March 2015, the applicant was observed driving the car along Tai Shu Ha Road East in Yuen Long.  At the time, he was the only person in the car.

7.  Having been discreetly followed by the police, the applicant was then stopped by two police officers, PC 52647 (“PW1”) and PC 34852 (“PW2”).  PW1 showed his warrant card and demanded that the applicant get out of the car.  PW1 tried to open the driver’s door but was unsuccessful.  The applicant then swerved the car to the right, whereupon PW2 immediately smashed the front passenger window with a glass hammer.  It was the evidence of PW2 that he saw a black bag inside the car when the vehicle was stopped.  The applicant was thus removed from the car and, soon afterwards, police officers from the Operations team took over the case.  DPC 58500 (“PW7”), of the Operations team, testified that when he searched the applicant, he found on him amongst other things, four mobile telephones and HK$11,750 in cash.  He also saw an open black bag on the front passenger seat of the car, which contained six transparent plastic packets containing a total of 3,261 grammes of ketamine, with what was later accepted to be a street value of about HK$699,504[2].

8.  It was also an admitted fact that two of the packets of ketamine had the DNA of the applicant on their surfaces[3].

9.  The prosecution further relied on the applicant’s admissions made at the scene, which were subsequently recorded in writing in PW7’s notebook[4], and later in a video-recorded interview.  The applicant had said to PW7 at the scene: “I just want to earn a living so I delivered drugs for someone with a car to earn money”.  It was further admitted in his subsequent video-recorded interview that because he needed money urgently, he had agreed to traffic the ketamine in question for an acquaintance named ‘Ah Ming’ for a reward of HK$4,000 to $5,000.  He knew the bag contained ketamine because he had opened it and looked inside after it had been placed in his car[5].  He said he felt remorse for his actions[6].

The defence case

The voir dire

10.  The defence challenged the admissibility of PW7’s police notebook and the subsequent video-recorded interview.  The basis of the challenges were alleged threats and inducements made by the police officers prior to obtaining the applicant’s admissions.

11.  The applicant elected to testify on the voir dire.  He said that upon his arrest, he had already been punched by a police officer when he denied having been in possession of the black bag.  The officer had told the applicant to admit the offence or otherwise, when the police searched his home, they would “definitely find something” there and all persons found in the premises would be arrested and charged with conspiracy to traffick in dangerous drugs.  The applicant testified that he was frightened by this threat, leaving him little option but to cooperate with the police.  He then asked a police officer if he could keep the HK$11,750 cash, to which request the officer agreed on condition that the applicant cooperated.  In respect of the admission made upon arrest, the applicant said he made it up when told to think of a reasonable excuse as to why he had trafficked in the dangerous drugs.

12.  Subsequently at the Narcotics Bureau offices in Wanchai, the applicant said he was taken by PW7 and DSPC 51516 (“PW8”) to the washroom, where he was told that a video-recorded interview was to be conducted; he was then coached to say in the interview that he knew the items in the bag were dangerous drugs, and who contacted him and how they contacted him in order to receive them.  Finally, he was also told to say he was remorseful and that he had done wrong.  The applicant hesitated but PW8 again referred to the house search, as a result of which the applicant quickly agreed to cooperate.

13.  The judge, having heard evidence from the prosecution and the defence, ruled the post-record of the admissions in PW7’s notebook and the video-recorded interview to be admissible and admitted them both into evidence.

The general issue

14.  The defence case put forward was simply that the applicant was never in possession of the black bag containing dangerous drugs, nor had he even seen the bag before.

15.  The applicant testified on the general issue that he was a contractor in the transportation business.  He had employees and had a steady income of about HK$60,000 a month.  On 16 March 2015, he decided to go and worship at a temple in Ap Lei Chau on Hong Kong island.  Accordingly, he parked his car and went for breakfast at about 9:30 am.  Thereafter, he walked to the temple, where he stayed for some 45 minutes, before going to the bank, where he remained for about two hours, mainly because of the queue at the bank. He then had lunch and went back to his car at about 12:45 pm.  The applicant said that he then decided to drive to Yuen Long in order to go to the Tin Hau Temple at Peng Chau Village.  However, whilst driving to the temple, he was intercepted.

16.  The applicant described about 4 to 5 plain clothes police officers rushing towards his car.  They pointed their guns at him and told him to get out of the car.  He said a police officer smashed the front passenger window before another officer switched off the car engine.  He was taken out from the car and pushed onto the ground.  Meanwhile, someone hit him on the back of his neck 3 or 4 times.  Two officers then pulled him up and placed him in the back row of a 7‑seater police vehicle, where he was questioned as to “where was the stuff and where was the store?”  The applicant said he did not know what the officer was talking about.

17.  PW8 then brought a black bag to the vehicle and showed it to him, alleging that it had been found in his car.  The applicant said the bag and its contents did not belong to him.

18.  The applicant alleged that before the video-recorded interview in the Narcotics Bureau, a police officer had asked the applicant to touch two of the packets of dangerous drugs before they had been placed in a tamper-proof envelope.  Accordingly, that was how his DNA had come to be found on two of the packets.  The defence also challenged the reason why police officers should have seized only the applicant’s mobile telephones but not the large amount of cash, suggesting that the cash was used as leverage to induce the applicant to cooperate with police inquiries.

Summing‑up

19.  In light of the applicant’s grounds of appeal, we should set out the judge’s directions on inferences, his instructions as to how the jury should approach the applicant’s admissions and his comment regarding the applicant’s knowledge of the dangerous drugs inside the black bag.

20.  In relation to the directions on inferences, the judge said:[7]

“As I said earlier, when you consider the evidence, you must not speculate. By speculation, I mean that where you do not have enough information or facts to draw a conclusion, or to draw a particular inference, then you may not guess what the situation may have been. Hence, if there is a gap in the evidence which cannot be filled by a logical inference, then you must not fill the gap by speculation.

However, members of the jury, you are entitled to draw inferences based on facts which you find proved beyond reasonable doubt. So if you find certain facts proved on the evidence before you, you are permitted to say, ‘Well, on the basis of those facts which I find proved, here are other facts about which I can be sure’.

…..

…in criminal cases, the inference you wish to draw must be the only reasonable inference that can be drawn from the proved facts. So if, from a set of facts which you find proved, there is a reasonable inference to draw against the defendant, as well as one in his favour, then you must not draw the adverse inference.

Now, always remember that you may only draw inferences of guilt or other inferences against the defendant if you are satisfied that the inference of guilt or other inferences against him is the only reasonable inference you can draw.  In drawing the adverse inference, you must be satisfied beyond reasonable doubt.  That is, you must feel sure.”

21.  In respect of the jury’s approach to the applicant’s contested admissions, the judge directed the jury as follows:[8]

“Members of the jury, the prosecution assert (although you should not necessarily accept everything said by the defendant to the police as accurate) nonetheless, the defendant’s response to the caution at the scene of arrest, as well as the answers he gave at the video-recorded interview, contained admissions by the defendant that he had trafficked in the dangerous drug in question. And the prosecution further contend that those admissions are true.

In deciding whether you can safely rely upon the admissions, you must decide this issue: Are you sure that the admissions are true? In addressing that issue (that is, whether the admissions and answers are true), decide whether they were, or may have been, made or given as a result of something said or done which was likely to render them unreliable.

If you conclude that the admissions and answers were, or may have been, obtained by PW7, DPC 58500 as a result of something said or done which was likely to render them unreliable, then you must disregard the admissions and answers.

In this case, the defendant alleges violence, threats and inducements by police officers at the scene of the alleged arrest. The defendant alleges that further coaching was done when he was brought to the toilet at the police headquarters in Wanchai. If you conclude that those allegations are or may be correct, and that the admissions and answers were or may have been obtained as a result of that conduct, then you must disregard the admissions and answers.

If, however, you are sure that the defendant made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true.  If, for whatever reason, you are not sure that the admissions are true, you must disregard them.  If, on the other hand, you are sure that they are true, you may rely on them.”

22.  The comment by the judge on the applicant’s knowledge of the contents of the black bag, about which complaint is made, came about in this way:[9]

“In respect of the issue regarding knowledge that it was dangerous drug that he was in possession of, members of the jury, I must emphasise that suspicion does not suffice and that knowledge must be proved. However, in the present case, if you are sure that the black bag containing the dangerous drug was in the defendant’s possession, you may have little difficulty in inferring that he knew it contained dangerous drug.

Indeed, there is no suggestion in this case by the defendant that he was aware of the presence of the black bag, but did not know the content inside. His case is that he was not in possession of the black bag at all”.

Grounds of appeal

23.  Although there are no less than eight grounds of appeal advanced, they could have been expressed in three grounds since there is an obvious overlap between some of them.  Grounds 1, 2, 3, 4 and 6 are all concerned with the correctness of the judge’s directions in relation to the applicant’s contested admissions, whilst Grounds 5 and 7 concern his directions on inferences. Ground 8 is a further complaint that the judge effectively withdrew the issue of knowledge from the jury by his directions.

The applicant’s admissions (Grounds 1, 2, 3, 4 and 6)

24.  The thrust of the applicant’s submissions is that by the judge’s instruction to the jury that “[i]n addressing (the issue of the truthfulness of the admissions), decide whether they were, or may have been, made or given as a result of something said or done which was likely to render them unreliable”, he conflated the issues of voluntariness and truthfulness or reliability, which should have been wholly independent issues (Ground 1), and failed to direct them to deal with the two issues separately and sequentially (Ground 2).  The judge’s direction, therefore, based on Mushtaq was inadequate in the context of the issues in the case (Ground 4).  The further instruction, also deriving from the Mushtaq direction, that the jury must “disregard the admissions and answers” if involuntary was a misdirection because it wrongly directed them in effect that they could not rely on any exculpatory admissions and answers (Ground 3).  Complaint is finally made that the judge did not relate the Mushtaq direction he gave to the evidence and issues in the case (Ground 6).

Inferences (Grounds 5 and 7)

25.  It is submitted that the judge was wrong to give the direction on inferences at all, since this was not an inference case (Ground 5).  However, if a direction on inferences was appropriate, the judge failed to place it in the context of the evidence for the jury, which concerned his knowledge of the dangerous drugs in the black bag (Ground 7).

Knowledge (Ground 8)

26.  It is complained that the judge’s remark that the jury “may have little difficulty in inferring that (the applicant) knew it contained dangerous drug” was akin to an “old school” presumption of knowledge, which was incompatible with the burden of proof (Ground 8).

Discussion

27.  We can dispose of the grounds concerning ‘inferences’ and ‘knowledge’ shortly.  It is not correct to say that this was not an inference case.  If the jury rejected the applicant’s admissions on arrest and in his video-recorded interview, they would have been left with the evidence of the applicant’s proximity to a large black bag openly displaying packets of white powder worth almost HK$700,000, two of which packets had the applicant’s DNA on them.  Moreover, the bag was at the time sitting on the front passenger seat of a car, of which he was the sole occupant and registered owner, and which he was driving at the time.  If the jury were not prepared to rely on any of his alleged admissions, it would have been a matter for them to decide from those facts, most of which were undisputed, whether he was in possession of the black bag, whether he knew that the contents of the bag were dangerous drugs and whether he was trafficking in the same.

28.  As for the alternative complaint, which is seemingly at odds with the argument that this was not an inference case, namely, that the judge did not place the direction on inferences in the context of the evidence, we disagree.  As Mr Ira Lui, for the respondent, pointed out, the judge clearly explained that:[10]

“…it is not easy to have direct evidence of a particular person’s knowledge, object or intention unless that person tells you directly. In most cases, you can only find this out indirectly by considering all the circumstances and by drawing an inference. In this regard, please bear in mind what I have said earlier about (the) drawing of inferences from established facts”.

The jury were there being expressly told that knowledge could be inferred.  A few sentences later, the judge dealt with the issue of trafficking and it is clear that he was again inviting them to consider whether trafficking could be inferred by considering “the quantity of the drug involved, the street value and the circumstances in which the drug was found”[11].

29.  None of the complaints about the judge’s directions on inferences have any merit whatsoever.

30.  In respect of the ground that the judge effectively asked the jury to presume the applicant’s knowledge of the contents of the bag, the complaint is misconceived.  Firstly, the judge did not ask the jury to presume knowledge.  Secondly, as we have just seen, he directed them that knowledge was a matter that could be inferred.  And, thirdly, as Mr Lui observed, the applicant was found alone in his own private car with a large black bag, clearly visible and positioned on the seat next to him, containing six packets of almost 6 kilogrammes of a white powder containing ketamine narcotic worth some HK$700,000.  The defence case was that he was not in possession, and had never seen, the black bag at all.  The judge was entitled to say what he did and it cannot conceivably be equated with a “presumption” of knowledge, a word which was never used or implied.  We completely reject this complaint.

31.  We turn to the grounds of appeal dealing with the applicant’s admissions.  It seems to us that the applicant is effectively asking us to hold that the Mushtaq direction is wrong in law and that the judge, therefore, erred in giving it, even though he was endeavouring to give a standard specimen direction promulgated by the Hong Kong Judicial Institute.  That is a bold position to advocate, given the Court of Final Appeal and this Court have long approved and applied the principles discussed in Mushtaq.  In our judgment, the judge was right to give the Mushtaq direction in the circumstances of the present case.

32.  In any event, we do not accept the applicant’s criticism of the direction.  Whilst his submission is that the question of voluntariness and truthfulness or reliability are independent questions which are required to be addressed sequentially, the applicant did not dispute using the words attributed to him upon arrest: rather, he admitted saying those words but claimed that the circumstances were quite different inasmuch as he made them up to satisfy the police officers as a result of various instances of oppression exerted on him.  Therefore, it would have been rather meaningless to tell the jury they had to decide whether the applicant had in fact said the words when his own evidence confirmed that he did but that they were untrue.  The only issue was whether the words were accompanied by circumstances of oppression such as to render them unreliable.

33.  The same may be said of the video-recorded interview.  The applicant’s case was that what he said came about as a result of prior circumstances of oppression.  There was no issue as to whether or not he had actually said what was recorded: the only issue was whether what he did say was said as a result of oppression so as to render his admissions unreliable. The jury were clearly directed that if they thought the admissions were or may have been made in circumstances of oppression, they were to disregard them.

34.  Accordingly, we do not accept the factual premise on which the applicant’s submissions are based and see nothing wrong in the judge’s directions, which were in conformity with the law as it is required to be applied in Hong Kong.

35.  As for the complaint that by the judge’s directions, the jury would have had to disregard his exculpatory answers, the short answer is that there were no exculpatory answers, either in his answer upon arrest or in the video-recorded interview.  The argument, even assuming for present purposes that it can be correct, is again based on an erroneous factual premise and we reject it.

36.  The further premise that the judge did not relate the Mushtaq direction to the evidence is also not correct. Having described, in the context of giving the Mushtaq direction, the applicant’s general allegations of “violence, threats and inducement by the police officers at the scene of the alleged arrest” and the “further coaching (that) was done when he was brought to the toilet at the police headquarters in Wanchai”[12], which evidence was later fully elaborated upon when he summarised the applicant’s evidence, the judge also referred to a point made by defence counsel in his closing speech concerning the apparent discrepancy between the applicant’s admissions about receiving two telephone calls from Ah Ming on the morning in question and the telephone records produced by the defence (Exhibit D1) showing four calls from a courier service in the Mainland[13].

37.  The jury could have been under no misapprehension as to their duty, if they considered that there might have been any truth in the applicant’s allegations against the police, to put the admissions to one side.  As it was, they unanimously convicted the applicant on what was overwhelming evidence, quite apart from his admissions to the police at the scene and later in interview.  The application for leave to appeal against conviction is therefore refused and the appeal dismissed.

38.  Finally, we should register our thanks to Mr Lui for dealing so expeditiously with the applicant’s eight substituted grounds of appeal and accompanying arguments, of which he too had no prior notice before they were handed to the Court on the first day of the hearing, in the short time available so as to enable us to deal with this matter.