HKSAR v. LUNG CHEUK TONG

[English Translation – 英譯本]
CACC 426/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 426 OF 1998

(ON APPEAL FROM HCCC NO. 87 OF 1998)

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BETWEEN

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. The Applicant appeared in the Court of First Instance on the following charges against him: two counts of trafficking in dangerous drugs, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap. 134), and one count of possessing arms without licence, contrary to Section 13 of the Firearms and Ammunition Ordinance (Cap. 238).  The Applicant pleaded guilty to possessing arms without licence but pleaded not guilty to trafficking in dangerous drugs.  After trial, the jury by a 5:2 majority convicted the Applicant on the first count and unanimously convicted him on the second count.  For the two trafficking offences, the Applicant was sentenced to imprisonment for 3 years and 7 years 8 months respectively, with the sentences to run concurrently.  For the possession of arms offence, the Applicant was sentenced to imprisonment for 1 year 4 months, with 6 months of which to run concurrently with the above 7 years 8 months sentence.  The total sentence was therefore 8 years 6 months.   The Applicant now applies for leave to appeal against conviction in respect of the two trafficking offences.

2. At 2.07 a.m. on 21 October 1997, two police officers were patrolling the Hunghom area.  They stopped the Applicant at the junction of Hok Ling Street and Ma Tau Kok Road and asked him where he lived and why he was there.  He replied that he was looking for a friend in Hok Ling Street.  The officers conducted a search on him and found two plastic bags from the left front pocket of his trousers.  The plastic bags contained certain drugs which were subsequently verified by laboratory tests to be  crystalline solid weighing 1.37 grams and containing 1.3 grams of methamphetamine hydrochloride, commonly known as “ice”.  The Applicant admitted to the police officers that the two plastic bags contained “ice”.  The officers then arrested him.  Under caution, he said that the drugs were for self-consumption.  The officers took him to the police station, where 4 keys were found on him upon search.  At 5.25 a.m. on the same day, police officers went with the Applicant to his place of residence in Kweilin Street to conduct a search.  Upon arrival, the Applicant opened the entrance door of his residence with one of the said keys.  The officers found in the room a paper box which contained another lot of “ice” which, as laboratory tests revealed, comprised  crystalline solid weighing 35.85 grams and containing 26.06 grams of methamphetamine hydrochloride.  The police cautioned the Applicant again, and he said under caution that those substances were “ice” which he purchased for self-consumption.  The police also found in the same room a total of 183 re-sealable plastic bags contained in two packs and one spoon.  A stun gun was also found in the room.  The Applicant and all the exhibits were taken back to the police station.

3. At trial, the prosecution and the defence submitted to the court the Admitted Facts, which detailed the nature of “ice”, the usual amount of “ice” being consumed and the method of consuming “ice”.

4. Mr Wong, Counsel for the Applicant, submits that the question for the jury in the present case was whether the prosecution had proved beyond reasonable doubt that the Applicant possessed the drugs in question, with part of the drugs to be sold or delivered to others.  In his summing-up, however, the trial judge neither adequately explained the term “traffic” nor directed the jury on how to apply the definition of “traffic” to the facts of the present case.

          The trial judge’s directions to the jury included the following:

“At law, the term ‘traffic’ is given a very wide definition.  Trafficking includes importing into or exporting from Hong Kong dangerous drugs, as well as procuring, supplying or otherwise dealing in or with dangerous drugs for the purpose of trafficking, or possessing dangerous drugs for the purpose of trafficking, and trafficking in dangerous drugs.  These are all definitions of trafficking.”

5. Counsel contends that, where the judge merely read out the statutory definition without any further explanation, the jury was liable to be misled.  Counsel relies on R v. Chan Hoi-wing (CACC 596/1996) and submits that the trial judge in the present case made the same mistake, thereby rendering the jury’s verdict unsafe and unsatisfactory.

6. It is the facts of the particular case that will dictate what sort of directions a trial judge has to give, what are the legal principles and evidence in respect of which directions should be given, as well as how directions are to be given.  Where certain facts of the case are not in dispute, the prosecution does not have to prove those facts, and there is no need for the judge to give detailed directions on those facts.  Or where the legal principles relevant to the case can readily be understood by anyone with common sense, the judge need not give any direction apart from referring the jury to the relevant statute.  In R v. Chan Hoi-wing, the trial judge read out to the jury the statutory definition of “trafficking” and did not further explain the term or direct the jury on how to apply the definition to the facts of the case, and Court of Appeal took the view that, in the circumstances of the case, the jury might have been misled.  However, the Court of Appeal did not hold that it must be wrong for the judge to read out the statutory definition without providing further explanation.  In our view, the most important question is whether the judge had, in his summing-up, clearly and fairly directed the jury on the facts, the evidence and the issues in dispute.  As to whether the judge erred in giving directions, the appellate court has to decide, in light of the judge’s speech as a whole, whether he had omitted any crucial matter or misled the jury or whether the conviction is unsafe or unsatisfactory.

7. In the present case, the Applicant was stopped by the police at 2 a.m.  At that time he had two bags of drugs on his person.  He explained to the police that he was looking for a friend at that time, and that he was carrying those two bags of drugs because he had not taken any drug that day and he intended to consume the drugs in one of the bags upon meeting the friend and keep the other bag for consumption later.  The Applicant also admitted to possessing the large quantity of drugs that the police found at his home.  It is not difficult to suspect or envisage from the circumstances leading to the Applicant’s arrest that he was trafficking in drugs at that time.  There are certain differences between the Applicant’s case and that of the defendant in R v. Chan Hoi-wing.  The defendant in that case was stopped by the police when he arrived at the entrance door of his home, and drugs were found following a search, and therefore it was not obvious whether the drugs were for trafficking or self-consumption.  Furthermore, as there was evidence in the present case on the nature and dosage of “ice”, the jury could, taking into account the quantity of the drugs involved, assess the probability of the Applicant possessing the drugs for self-consumption.  Therefore, it might have been necessary for the trial judge in R v. Chan Hoi-wing to further explain the term “trafficking”.

8. The charge against the Applicant was unlawfully trafficking in dangerous drugs, and the prosecution had to prove beyond reasonable doubt that, firstly, the Applicant possessed the drugs in question, and secondly, he “trafficked” in those drugs.  The term “trafficking” has been defined in Section 2 of the Ordinance.  It must, however, be noted that “trafficking” is expressly defined to “include” and not “be equivalent to” certain acts.  From this definition, the legislative intent is apparent: apart from maintaining the ordinary meaning of “trafficking”, the legislature seeks to explain and expand the scope of “trafficking”, not only in order to clarify the meaning of the term, but also in order to overtly extend statutory control to certain acts which may otherwise not be regarded as trafficking.  The most obvious example is the inclusion of “possessing the dangerous drug for the purpose of trafficking” in the statutory definition of trafficking, which means that, even though there is no evidence showing that the defendant was engaged in an act of trafficking in dangerous drugs, the judge or jury can infer from the defendant’s act of possessing the drugs and other factual evidence that the defendant possessed the drugs for the purpose of trafficking, and at law this did constitute trafficking.  It is therefore obvious that the statutory definition aims to explain and expand the scope of the term “trafficking”.  In order to understand what amounts to “trafficking” at law, one does not only have to look at the ordinary meaning of the word, but also has to consider whether the statutory definition is applicable.

9. As far as directions to jury are concerned, there is one difference between the present case and R v. Chan Hoi-wing.  In that case, the trial was conducted in English, and therefore the jury was also directed in English.  The subject-matter of the charge was “traffic”.  This word ordinarily means the movement of people, vehicles, ships or planes, but it can also mean unlawful buying and selling.  If, therefore, the directions on the term “traffic” are given in English, then apart from reading out the relevant statutory definition, the judge may also have to provide further explanation.  In the present case, the trial was conducted in Chinese and the jury was also directed in Chinese.  The subject-matter of the charge was “販運”.  The situation was then somewhat different. The meaning of this Chinese term is clear and straightforward: sell and deliver.  It follows that, even if the judge does not provide any further explanation, ordinary people will still know what “販運” refers to.   Where the judge has given directions on the other relevant evidence such as the quantity of the drugs involved, the quantity being consumed and the other exhibits found upon search, then in some cases it may be sufficient for the judge to read out the statutory definition of “販運” and any further explanation may only serve to confuse the jury.  As to whether particular directions are sufficient and what kind of directions will be sufficient, this must depend on the circumstances of the case, and no general rule can be formulated.

10. In the present case, the question to be determined by the jury was: did the Applicant possess the drugs for self-consumption, or did he intend to traffic in all or part of them?

          In the course of directing the jury, the trial judge said the following:

“None of the prosecution evidence is under dispute.  The only question you have to consider is whether, on the basis of the arguments advanced by the prosecution, you firmly believe that, in respect of each charge, the defendant did possess those dangerous drugs for the purpose of trafficking, or whether, as he and his lawyer have explained to you, you believe that those drugs were for self-consumption rather than for trafficking.  This is the only question you have to consider.

… Therefore, you have to take into account all the testimony and evidence.  If you have a reasonable doubt and cannot firmly believe that the defendant trafficked in these dangerous drugs, you cannot convict him of trafficking in dangerous drugs and can only convict him of possessing dangerous drugs.  You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant possessed those two bags of ‘ice’ and that those two bags of ‘ice’ were for the purpose of trafficking.  Only then can you convict him on the first count.

… If you have a reasonable doubt after considering all the evidence, he [the defendant] is entitled to the benefit of doubt, and you cannot convict him of trafficking and can only convict him of possessing dangerous drugs.  You can convict the defendant of trafficking in dangerous drugs only if, having carefully considered all the evidence, you firmly believe beyond reasonable doubt that the defendant used the ‘ice’ found at his home for the purpose of trafficking.  Only then can you convict him on the second count.”

11. On the facts of the present case, and looking at the speech of the summing-up as a whole, the trial judge had, far from misleading the jury, lucidly explained to them the issues involved and the questions they had to determine.  The jury would also have understood the meaning of drug trafficking without the need for further explanation.  In the circumstances of the case, we take the view that the trial judge’s directions to jury were adequate as they stood, and we see nothing unsafe or unsatisfactory about the Applicant’s convictions.  The grounds of appeal not having been made out, we dismiss the application and affirm the trial judge’s verdict.