HKSAR v. JIM FAI

[English Translation -- 英譯本]

CACC 383/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 383 OF 2002

(ON APPEAL FROM HCCC NO. 385 OF 2001)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court):

Appeal against conviction

1. The applicant appeared before the Court of First Instance on one count of trafficking in a dangerous drug.  It was alleged that he unlawfully trafficked in 279.09 grammes of a mixture containing 155.01 grammes of heroin hydrochloride.

2. Following a trial before Deputy Judge Pang and a jury, the applicant was convicted and sentenced to 10 ½ years’ imprisonment.

3. The applicant now seeks leave to appeal against conviction.

The prosecution case

 4.      On 8 August 2001, police officers arrived at premises where the applicant resided (“the premises”).  At that time, the applicant was alone inside the premises.  Having shown a search warrant to the applicant, the officers conducted a search inside the premises and found heroin and paraphernalia, including:

(1)   6 plastic boxes in the kitchen, containing a large amount of white powder being an additive commonly found in mixtures of heroin hydrochloride;

(2)   a black plastic bag under the stove in the kitchen, containing 13 small packets of heroin;

(3)   a carton in the living room, in which a Philips box containing a mixer and its components was found; on top of the box was a big packet of white powder being an additive commonly found in mixtures of heroin hydrochloride;

(4)   a dark grey paper carrier bag by the side of the carton in (3) above, containing some re-sealable plastic bags of various sizes, white plastic bags, a roll of transparent plastic bags and a stack of 3 small pieces of paper cut out from a newspaper;

(5)   traces of heroin on the dust screen of the air-conditioner in the premises.

5.       The applicant was the registered tenant of the premises and lived there on his own.  On 23 July 2001, he was admitted to hospital.  Upon discharge on 3 August 2001, he returned to the premises and continued to live there until the day of the alleged offence.  Between 3 August and 8 August 2001, he lived alone at the premises and no one visited him.  

The applicant’s defence

6.       The applicant elected to give evidence in defence.  He said that he had been too ill to check the condition of the premises ever since his discharge from the hospital on 3 August 2001, and that he did not notice that the various items found by the police as mentioned above were kept inside the premises.  He said he intended to seek medical treatment in Mainland China in March 2001, so he handed the other set of keys to the premises to a man living in his neighbourhood and asked him to pay rent and clean the premises for him.  He has not asked that man for the keys back since then.

7.       This case essentially concerned findings of fact.  The applicant called two doctors, who testified that he was suffering from heart disease, tracheal disease and kidney failure.  The applicant underwent angioplasty on 27 August 2001.  The doctors said his mental condition was not as good as that of ordinary people. 

8.       Looking at the facts as a whole, the jury were entitled to find, on the basis of the prosecution evidence, that the applicant had knowledge of the heroin kept inside the premises and that he was “in possession” of those drugs.  The applicant lived alone at the premises, which, according to the evidence, had been used as a drug cutting and packaging centre.  Apart from heroin, other items were found in the premises, including additives that were used for mixing with heroin, a mixer and a large number of plastic bags.  Those items could all be used for mixing and packaging drugs.  Apart from the heroin, other items were all placed in conspicuous places inside the premises.  If the jury refused to accept the applicant’s defence, it was open to them to further infer that the applicant possessed the dangerous drugs found inside the premises for the purpose of trafficking.   

Grounds of appeal

9.       The applicant raises three grounds of appeal.  The first relates to the “lies” direction given by Deputy Judge Pang to the jury.  The applicant contends that it was unnecessary to give a “lies” direction and that the direction which the Judge did give was incomplete.  The second ground is that the Judge failed to explain clearly the definition of “possession”.  The third ground is that the Judge did not clearly explain the definition of “trafficking”. 

“Lies” Direction

10.     Generally speaking, a “lies” direction is unnecessary save under certain circumstances.  The purpose of such a direction is to make it clear to the jury that even if the defendant has lied, it does not necessarily follow that he is guilty.  In HKSAR v. Mo Shiu Shing [1999] 1 HKC 43, this Court pointed out that a “lies” direction has to be given under the following circumstances:

(1)   Where the defence relies on an alibi;

(2)   Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant;

(3)   Where the prosecution seeks to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved;

(4)   Where although the prosecution has not adopted the approach stated in (3) above, the judge reasonably envisages that there is a real danger that the jury may do so.

11.     According to Mo Shiu Shing, a “lies” direction should be modified as appropriate in light of the circumstances of the particular case.  In general, such a direction will be adequate if it conveys the following two fundamental messages:

1.    the lie must have been established upon the defendant’s admission or proved beyond reasonable doubt;

2.    the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons.  Therefore, it is only when the jury is sure that the defendant did not lie for an innocent reason that a lie can be used in support of the prosecution case.

12.     In the present case, Deputy Judge Pang did give a “lies” direction to the jury, but obviously not by reason of any of the four circumstances prescribed in Mo Shiu Shing and set out above.  The Judge raised this point when he was directing the jury on how to deal with the evidence given by witnesses (including the defendant’s evidence).  He first stated that the burden of proof was on the prosecution, and that even if the jury did not believe anything the defendant and his witnesses had said, they could not jump to a verdict of guilty, because such a verdict could be made only where the evidence which they accepted as true was sufficient enough for them to be sure of the defendant’s guilt.  The Judge then gave the following direction in relation to lies:

“As a matter of fact, accused persons may not tell the truth, but that does not necessarily mean they are guilty.  Sometimes they just want to bolster a genuine defence, that is, in colloquial terms, to lay it on thick.  Or they may think that it would be hard to have the truth believed; or the truth involves some disgraceful conduct which fell short of being criminal; or they may lie simply out of panic, and so on and so forth.  So if you really do not believe something the defendant has said and think that he has lied, but that he may have done it for reasons unrelated to guilt that I just talked about, then the only thing you should do is to disregard such part of the defendant’s evidence that you think is a lie, and concentrate on any other evidence you accept as true, including such part of the defendant’s evidence that you regard as true.  I wish to make it clear that I am not saying the defendant has lied in any respect; I am just saying that, even if you are sure he has lied, you should not and cannot convict him for this reason alone.”

13.     In Mo Shiu Shing, this Court also pointed out that, where a “lies” direction is unnecessary because the case merely involves a conflict between prosecution evidence and defence evidence, giving such a direction would only add complexity and do more harm than good.  The present case did not call for a “lies” direction, and Deputy Judge Pang gave such a direction apparently because he wished to put the jury in a better position to assess the defendant’s evidence.  His intention was to safeguard the defendant’s rights.  In our view, even though the Judge’s direction on lies had been unnecessary, the applicant’s conviction was not rendered unsafe unless there is clear evidence that the jury had been confused by that direction. 

14.     The applicant contends that the jury did get the wrong impression from the Deputy Judge Pang’s direction that he had lied.  Following the summing-up, and before the jury retired to deliberate, the foreman verbally raised two questions with the Judge:

“(1) [if] he (the applicant) knew something was there but did not know what it was, and he did not care about it, is he guilty?

  (2) [if] the defendant knew these stuff and he … also knew it was drugs, but he did not care about it, that is, for instance, he did not call the police or the like, is he guilty?”

15.     Deputy Judge Pang requested the jury to write down the above questions or other questions on which they needed an answer from the court.  After deliberation, the jury returned with the following question in writing:

“If the defendant knew that there was something in the premises but did not know it was drugs, and he neither took any action nor informed the police, then was he in possession of that article?”

16.     Mr Eric Kwok, counsel for the applicant, submits that this written question was the same as the first verbal question raised by the jury.  He suggests that the jury might have left out the second verbal question because, having heard the summing-up, they had formed the view that the applicant’s assertion that he had no knowledge of the existence of the drugs was a lie, and they had used this lie as evidence against the applicant. 

17.      Ms Mary Sin, acting for the respondent, submits that the Judge had in fact not given any “lies” direction, because he told the jury that even if they took the view that the defendant had lied, they should not and could not convict him solely on that basis.  Ms Sin submits that, in terms of meaning and nature, what the Judge told the jury was a far cry from the standard “lies” direction, which allows the jury to consider using lies as corroborative evidence under certain circumstances.  Since the Judge had not given any “lies” direction, the problem which the relevant authorities had highlighted, namely that of the jury being confused by such a direction, simply did not arise in the present case.

18.     We take the view that Deputy Judge Pang did give a “lies” direction, although it did not contain all the elements of a standard “lies” direction.  However, we do not agree with Mr Kwok’s contention that the jury did not put the second verbal question into writing because, having heard the Judge’s “lies” direction, they had formed the view that the applicant was lying when he said he had no knowledge of the drugs, and had therefore used the lie as evidence against him.  In our view, the Judge’s direction made no mention whatsoever of the circumstances under which the jury could use a lie as corroborative evidence against the applicant, and hence could not have led the jury to the decision that Mr Kwok suggests.

19.     Furthermore, even if the jury had conjectured as to this matter among themselves, Mr Kwok’s suggestion is still not defensible as a matter of logic.  The wordings of the three questions raised by the jury had one thing in common, namely the defendant had knowledge of, and did not care about, the existence of the items; at the same time, the questions were different in that the first verbal question assumed the defendant did not know what the items consisted of, the second verbal question assumed the defendant knew that those items were drugs, and the third question (the only written question) assumed the defendant did not know that those items were drugs.  This shows that, when the jury raised the written question, they were still concerned about the findings to be made if they believed that the applicant indeed did not know that the items in the premises were drugs.  Deputy Judge Pang had clearly and correctly told the jury that, in that particular situation, they had to find that the applicant was not “in possession” of those drugs.  Therefore, the suggestion that, having heard the “lies” direction, the jury had formed the view that the applicant was lying when he said he had no knowledge of the existence of the drugs, is far-fetched and inconsistent with the facts of the case.            

20.    In his submission before us, Mr Kwok sought to make the following amendment: when he said that the jury had, in light of the summing-up, formed the view that “the applicant was lying when he said he had no knowledge of the existence of the drugs”, he actually meant that the jury had formed the view that “the applicant was lying when he said he had no knowledge of the existence of the items”.

21.     We wish to point out that this was not what the jury raised in their questions.  Their questions had all along rested on the supposition that the applicant had knowledge of existence of items in the premises.  Therefore, even a shift in the focus of Mr Kwok’s submission will not serve to show that the jury had been confused by the “lies” direction.

22.     Mr Kwok also submits that Deputy Judge Pang failed to follow the standard “lies” direction in that he had not directed the jury that the applicant must admit to having lied or the prosecution must prove the lie beyond all reasonable doubt.  With respect, we have difficulty in understanding this ground of appeal.  As we have already pointed out, the Judge’s “lies” direction was not concerned with directing the jury on the circumstances in which lies could be used as corroborative evidence.  Mr Kwok’s contention, therefore, does not constitute a valid ground of appeal.

23.     To avoid any further disputes on this issue, we take this opportunity to make it clear that trial judges should give a “lies” direction only when it is necessary.  In normal circumstances, a judge is not required to give the directions set out in paragraph 11 above.

Definition of “possession”

24.     In HKSAR v. Chiu Fung Kuen and Yim Chi Shing (transliteration) (趙鳳娟及嚴之成) (CACC 475/2001), this Court held that, in order to prove “possession” of drugs by a defendant, the following elements have to be established:

(1)   the defendant had knowledge of the existence and nature of the drugs;

(2)   the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary;

(3)   when the defendant used or employed other means to retain the relevant drugs, he also had the power to exclude others from using and keeping the relevant drugs. 

25.     Mr Kwok submits that Deputy Judge Pang had failed to point out clearly the second of the three elements mentioned above, namely the defendant had the intention and power to retain the relevant drugs by using or employing other means when necessary.  In particular, when the jury raised those two questions, the Judge should have immediately made it clear that knowledge was not the same as “possession”.

26.     With respect, we do not agree with Mr Kwok on this issue.  In explaining “possession” to the jury, Deputy Judge Pang referred to two definitions of the term.  The first was to hold a physical object directly, and the second was to retain the right of control over an object.  The Judge gave the following direction regarding the first definition of “possession”:

“It is to hold a physical object directly.  For example, I am holding this law book in my hand.  This is a conscious act.  I do want to hold it, I know what I am holding, and I know it is a law book.  I also have my own purpose of holding it, for instance, I want to read it or move it from one place to another in order to keep it from getting wet, or maybe I want to take it back into the chambers, and so on.  This is to hold a physical object directly.”

27.     As for the second definition of “possession”, Deputy Judge Pang gave the following direction:

“However, I have many such law books.  This book is only one of them.  The other books are in my office.  Although they are not in my hands at this moment, I can get them and read them anytime I want, or lend them to someone or refuse to lend them to anyone.  In this way, the other law books in my office are still in my possession, but such possession is in the second sense, which, put simply, is to retain the right of control over the objects.”

28.     In his directions, Deputy Judge Pang did not expressly refer to the need for the applicant to have the “intention” and “power” to use those drugs.  This notwithstanding, the requirements of “intention” and “power” were obviously included in the illustrations he used.  When he said he was holding a book, he referred to his intention, which might be to read it or to take it back to his chambers; or when he was not holding other books, he could always have access to them or lend them to others.  These were all practical illustrations of the need for the defendant to have “intention” and “power” to use this item.  In Chiu Fung Kuen, this Court held that the trial judge’s direction on possession was inadequate, because the example he used did not demonstrate the need for the defendant to have “power” to use the relevant item.  That example related to the use of books of the court in a courtroom by a barrister.  As this Court pointed out, a barrister does not have the “power” to use the books of a court without permission.  Even if the barrister has the requisite intention, he still does not have “power” to exercise control over the books of a court.  This is entirely different from the example used by Deputy Judge Pang in the present case.  The Judge of course had the “intention” and “power” to use his books whenever he needed them.  The example given by the Judge contained all the elements of “possession”.       

29.     For this reason, we do not find anything improper in the direction on “possession” in the present case.  In our view, however, it would be more appropriate for judges to set out all the elements of “possession” before citing examples to illustrate those concepts.

30.     Mr Kwok queries why the jury still asked questions if they had understood Deputy Judge Pang’s direction on “possession”.  The fact that the foreman raised the verbal questions immediately following the summing-up shows that those questions were what the jury had discussed the day before.  When he raised the verbal questions, they had not reached a conclusion on the issues raised in the summing-up.  This does not mean that they did not understand the direction on “possession”.  As to the subsequent written question, the Judge had clearly told the jury that, if the applicant did not know that those items were drugs, he would not be “in possession” of them.

Direction on trafficking

31.     The third ground of appeal contends that Deputy Judge Pang had failed to give a clear and complete direction on the meaning of “trafficking”.  Mr Kwok submits that, in explaining term “trafficking”, all Deputy Judge Pang did was quoting the words of the relevant ordinance and pointing out that “trafficking” was different from “peddling”, and he had failed to give any further explanation in light of the circumstances of the present case.

32.     With respect, we do not agree with this submission.  In explaining the term “trafficking”, Deputy Judge Pang did in fact tell the jury that “trafficking” meant cutting, packaging and selling drugs.  This direction was clearly directed at the circumstances of the present case.  The prosecution alleged that the premises had apparently been used as a drug cutting and packaging centre.  The Judge also pointed out to the jury that the focus of this case was whether the applicant had done any act of “trafficking”, and this hinged on whether he had been “in possession” of the drugs in question.  The Judge referred to the prosecution’s remark that the drugs and other items were found in conspicuous places inside the premises, and this, the Judge said, allowed for only two possibilities: first, those items belonged to the applicant himself; and second, others had placed these items inside the premises with the applicant’s consent.  In the present case, the jury were entitled to find that the items in the premises, including the drugs, were in the applicant’s “possession”.  Given the nature of those items, the jury were also entitled to infer that the applicant was “in possession” of those items for the purpose of “trafficking”, because earlier on Deputy Judge Pang had explained that cutting, packaging and selling drugs could amount to “trafficking”.  The quantity and value of the drugs involved, the fact that the drugs had already been put in different packets, and the presence of drug cutting items and measuring apparatus in the premises, could all be relied on by the jury as evidence of “trafficking”.  For this reason, we take the view that the Judge had given a complete direction on “trafficking”.

33.     In his direction, Deputy Judge Pang referred to the prosecution’s allegation that the applicant had agreed to safekeep the drugs for others for the purpose of “trafficking”.  The Judge explained to the jury that the alleged safekeeping agreement must be such as to constitute at law “joint possession” of the drugs by the applicant and others before the applicant could be found guilty.  The Judge had earlier on explained this legal concept of “joint possession”, citing, by way of illustration, an example of books being jointly used by two judges.  The ground of appeal raised on behalf of the applicant is that the Judge had not clearly stated that being “in joint possession” of the drugs with others was in itself insufficient to prove that the applicant was “in possession of dangerous drugs for the purpose of trafficking”.  In HKSAR v. Ng Hung Chi (CACC 186/2000), the appellant verbally admitted to the police upon arrest that she was only hiding the drugs for her husband.  In its judgment, this Court pointed out that the direction given by the trial judge conveyed an impression that, by storing drugs, the defendant already trafficked in them.  This Court considered the direction incomplete, because the fact a defendant stored drugs did not necessarily mean he was dealing with or trafficking in the drugs, since he might well be storing them for his own consumption.  This Court said that, to enable the jury to arrive at a verdict on the charge of “possessing dangerous drugs for the purpose of trafficking”, the judge must give further relevant directions to the jury, such as the appellant had reached an agreement with others so that the appellant or others would sell the drugs, or that the appellant would deliver the drugs according to instructions given by others, and so on.

34.     The observation of this Court in Ng Hung Chi that the trial judge had to further explain to the jury the meaning of “trafficking” was obviously made in light of the facts of that case and of the direction given by the trial judge.  In the present case, there was no allegation that the defendant was storing the drugs for self-consumption.  In his direction, Deputy Judge Pang said that, even if the applicant was not the person who did the drug cutting and packaging, it would be impossible for him not to have knowledge, since the relevant items were found in conspicuous places; and since he had not taken any action, he must have been safekeeping the drugs for others for the purpose of trafficking.  This direction was in our view adequate and we see no need for the Judge to provide any further explanation.  The jury clearly understood the Judge was referring to the applicant having agreed to safekeep the drugs for others, who would cut, package and peddle the drugs.  This conduct is relevant to “joint possession” of drugs for the purpose of “trafficking”.

35.     Mr Kwok submits that the written question raised by the jury, particularly its reference to the applicant not caring about the relevant items, indicates that the jury must have excluded the possibility that the applicant himself cut and packaged the drugs, and therefore Deputy Judge Pang should have elaborated on the issue of “trafficking”.  We have difficulty in accepting this argument.  The jury’s written question focused on “possession”, and the Judge had already clearly told them that if the applicant did not know that the items in the premises were drugs, he would not be “in possession” of them.  The written question had nothing to do with “trafficking”.

36.     As a matter of fact, that the applicant safekept the drugs for others was nothing more than a possibility raised by the prosecution.  The applicant had never admitted that he was safekeeping the drugs for others.  His only defence was that he had no knowledge of the existence of the drugs.  As we have pointed out, even if the jury were of the view that the applicant was not safekeeping the drugs for others, they could still rely on the drug cutting and packaging evidence and conclude that the applicant himself was “in possession of the drugs for the purpose of trafficking”.  For this reason, even if it were true that Deputy Judge Pang had not further elaborated on “joint possession for the purpose of trafficking”, this would not have rendered the conviction unsafe and unsatisfactory.

Conclusion

37.     In the absence of a valid ground of appeal, the application for leave to appeal against conviction is dismissed.