HKSAR v. WONG HEI CHIT

CACC 182/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 182 OF 2015

(ON APPEAL FROM HCCC NO. 298 OF 2014)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1.  On 19 May 2015, following a trial before Deputy Judge S T Poon and a jury, the applicant was convicted of two counts of trafficking in a dangerous drug, namely 2.16 kilogrammes of a powder containing 1.66 kilogrammes of ketamine (Count 1) and 0.72 kilogramme of a powder containing 0.57 kilogramme of ketamine (Count 2), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. On 20 May 2015, the applicant was sentenced to 18½ years’ imprisonment. He appealed against his conviction only.

2.  On 3 November 2016, we allowed his application for leave to appeal against conviction, allowed the appeal and ordered a retrial on a fresh indictment before another judge.  These are the reasons for our decision.

The prosecution case

3.  In order to understand the chronological sequence of events, it will be convenient if we set out the facts in respect of Count 2 first.

Count 2

4.  At about 6:50 pm on 27 February 2014, the applicant was observed by Customs officers driving his van alone to a public parking area at Tai Loong Street, Kwai Chung, and stopping outside a pizza restaurant.  A person named Kwong Kin-pan (“Kwong”), who testified as a prosecution witness (PW5), having pleaded guilty in other proceedings to trafficking in the dangerous drugs, the subject of Count 2, approached the applicant’s van and collected three boxes purportedly containing new iPhones from him.  The Customs officers testified that Kwong entered the van and sat in the front passenger seat for a short time, although this detail was disputed by the applicant in his evidence at trial.  Having received the three boxes, Kwong placed them in a green bag he had brought with him and left the vehicle.  He then examined the contents of the three boxes, although he agreed in cross-examination that this was done at a place out of sight of the applicant.

Count 1

5.  At about 7 pm the same evening, the applicant was intercepted in his van by two Customs officers near Cheung Wing Road, Tsuen Wan.  Upon a search of the vehicle, the officers found a red bag on the front passenger seat containing nine iPhone boxes, one of which they opened and found suspected dangerous drugs inside.

6.  The three boxes collected by Kwong and all nine boxes on the front passenger seat of the applicant’s van were each subsequently found to contain a black plastic bag containing ketamine powder in the total quantities set out in each count.  The applicant was duly arrested and cautioned.  When asked what the white powder was, he said he did not know.  He further claimed that he was merely delivering goods as part of his transportation business.

7.  A further search of the vehicle revealed HK$4,000 in cash in the ashtray, together with three mobile telephones.

8.  It was an admitted fact that the retail values of the dangerous drugs in Counts 1 and 2 were HK$250,560 and HK$83,520 respectively.

9.  The prosecution relied on the unusual circumstances of the above delivery and alleged that the applicant must have known that the twelve iPhone boxes he was delivering contained dangerous drugs.

The defence case

10.  The applicant elected to give evidence and called a defence witness.  Since the point at issue in this appeal turns on the treatment of the applicant’s evidence and the directions in relation to it by the judge, we need to deal with it in some detail.

11.  The applicant testified that he had come to know a person called Ma Man-chun (“Ma”) at secondary school about 13 years earlier and they had remained friends and subsequently colleagues employed by the same bakery.  In 2010, Ma bought a goods vehicle and set up his own business.  Some of his other colleagues followed suit.  By 2011, the applicant could see that their businesses were doing well, so he too decided to start his own transportation business.  With the support of his family and fiancée, he purchased the van in question.

12.  The applicant initially obtained business through referrals from Ma and his former colleagues.  Over the course of four years, Ma had referred some $100,000 worth of business to him, none of which involved mobile telephones.  Ma had sold his own vehicle at the end of 2013.

13.  On 8 February 2014, he received a telephone call from Ma, who said that he had a regular customer who was looking for a trustworthy driver to transport some goods for him.  Since it was the one month anniversary of the birth of his daughter on that day, the applicant said he was unable to take up the job but instead lent his vehicle to Ma, who in due course returned it.

14.  Some days later, Ma called again to say that he was delivering telephones that evening and asked the applicant if he was available to do it with him.  The applicant agreed, whereupon Ma asked the applicant to meet him at the Chinese University MTR Station.

15.  The applicant drove to meet Ma as arranged and, after a while, a male appeared and handed some telephones over to Ma.  Having counted them, Ma directed the applicant where to drive in order to make deliveries of the telephones, usually in the Kowloon area; the applicant earning $60 for each destination to which a delivery was made.  He said that he delivered telephones with Ma on four or five occasions.  Thereafter, he made deliveries without Ma on two occasions, but using the same routine which he had observed when Ma had been with him.

16.  These deliveries of iPhones all involved the same pattern, namely:

(a)   The applicant would drive to Chinese University MTR Station to collect the iPhones from someone;

(b)   Ma would call the applicant to tell him the mobile telephone numbers and addresses of the customers and the number of iPhones they were to receive, which information the applicant would jot down in his own notebook;

(c)   The applicant would then call each customer to inform him/her of the number plate of his van and the location at which he would meet them; and

(d)   When he met the customer, the applicant would double check against the recipient’s telephone number in order to verify his/her identity.

No money was exchanged on any occasion.

17.  In relation to events on 27 February 2014, the applicant testified that he believed he was delivering genuine boxes of iPhones.  In respect of the delivery to Kwong (Count 2), he said he knew Kwong was collecting three iPhones on behalf of two different persons.  Therefore, before passing the goods to Kwong, he had asked for the two customers’ telephone numbers, which he found tallied with the names he had recorded in his notebook.

18.  At trial, the applicant produced records of his previous transportation orders in order to demonstrate that he had been running a genuine transportation business.  A defence witness was called to testify that the applicant had delivered goods to customers of her company over a period of some 2 years.  On each occasion, he was paid about $1,000 per day.  As to the $4,000 in cash found in the van, he explained that this represented his payments from other deliveries.

19.  The evidence of the applicant’s association with Ma and his previous deliveries with (or without) Ma of mobile telephones to various customers was, of course, unknown to the prosecution when the applicant commenced his testimony. Accordingly, prosecuting counsel (not Ms Chan) began his cross-examination as follows:[1]

“Q. Mr Wong, all of this about your other contacts, contracts, other jobs you do, everything is basically a smokescreen to hide the fact you knew what you were doing when you were delivering these supposed iPhone boxes on the night of 27 February last year, weren’t they? It’s one big smokescreen.

A. Disagree.

Q. The iPhone boxes themselves are part of the smokescreen, aren’t they, so that you can deny knowledge?  You say, “I’m simply delivering iPhones.”

A. Disagree.

Q. Now, I’m going to keep using the phrase “iPhones”, just so that we don’t keep going backwards and forwards: I use the word “ketamine”; you use the word “iPhone”. So I’m going to use “iPhones”, but I do not accept that you did not know there was ketamine in those boxes, you understand, but, for simplicity’s sake, I’ll just talk about the iPhones. Do you understand?

A. Understand.

Q. How many times had you delivered iPhones previously for Mr Ma?

A. For five to six times.

Q. How many each time, roughly?

A. Around 10 boxes.

Q. Each time.

A. Approximately.

Q. So that’s about 50 boxes, all the same make, the same model of iPhone, supposedly.

A. You can say so.

Q. I’m not saying so. Are you saying so?

A. Actually, before that, Ma Man-chun brought me to make the delivery. I cannot really recall the exact number of boxes that had been delivered.

Q. Well, perhaps you would answer my question. You’ve already answered that. You’ve given your own answer. Now you want to change. But perhaps you could answer my question. Are you saying they were all iPhone S5phones?

A. No.

Q. What were the other models?

A. All of them were iPhone 5S phones.

Q. Right. I say to you that that itself shows that these were fake.

A. But I disagree.

Q. You said to your counsel you weren’t at all suspicious. Were you not at all suspicious that all the 50 people or more were all buying exactly the same phone in this way?

A. I don’t find it suspicious.

Q. All right. The reason you don’t find it suspicious is because you know that they weren’t really iPhones in those boxes, didn’t you?

A. Disagree.

Q. In all the deliveries you made, did anybody ever open the boxes to check that you had actually delivered an iPhone S5 model to them with everything in there that needs to be in there? Anybody ever check that?

A. Nobody did so.

Q. Because they were receiving things that were not iPhones, weren’t they?

A. Disagree.” (Emphasis supplied)

20.  Later, the following exchange in cross-examination ensued:[2]

“Q. Yes, yes. I know that. You seem to be avoiding the question. You then went on to explain to him when he asked you again, “How did you deliver?”, you said, “I placed the noodles at the entrance to the shops.”

A. Correct.

Q. Yes, and normal, legitimate deliveries would be made in that way. If there was no one around, you would leave things somewhere convenient, somewhere sensible in the early hours of the morning and so on. That’s what you would do. You would deliver to a place.

A. I’m making the delivery to the shop.

Q. Yes. That’s my point. When you were delivering these phones, you weren’t delivering to a shop, a specific person. You were just handing them over to someone in the dark, in a car park, and that’s because you knew they were not legitimate goods.

A. Disagree.”

21.  At the end of the cross-examination with the applicant, it was again put to him:[3]

“Q. What I’m saying to you is you knew that that was not a bag of mobile phones.

A. Disagree.

Q. Everything that happened that night, everything, points to an illicit transaction and you knew that.

A. Disagree.

Q. Everything that happened that night, even on your own version, is completely different to how you would normally behave as a delivery driver for a legitimate purpose.

A. Disagree.

Q. And the reason it is so different is because you knew full well you were delivering drugs.

A. Disagree.”

22.  At the close the defence case, prosecuting counsel addressed the jury in the following terms:[4]

“You’ll remember the phrase I used in cross-examination of the defendant – which he denied, which you probably expect him to do – which is that the whole thing was a smokescreen. And from the very beginning I include in that the iPhone boxes, his story about the work he did as a delivery driver which may be true but that doesn’t mean that he did not know that these were drugs in these boxes.

His story about picking them up at Chinese University car park, and so on, does that sound a legitimate deal to you?  Again, now, of course that wasn’t part of the prosecution case, we didn’t know that, that may well be true.  Does that sound to you like someone who’s doing a legitimate deal, or thought he was doing a legitimate deal?”

The summing-up

23.  In his summing-up, the judge gave standard directions as to the burden and standard of proof in criminal cases, the need for separate consideration of each count on the indictment and the law in relation to “trafficking”. He also outlined the important aspects of the evidence, which he emphasised were not exhaustive.

24.  In respect of the defence that the applicant was running a genuine transportation business, the judge said:[5]

“Members of the jury, the defendant has given a detailed account on how he delivered or would deliver the iPhones to customers. It is for you to decide whether the iPhones were delivered in such a way. However, even if you accept that that was really the mode of delivery of the iPhones, you should also think about in what way it can help you to decide whether the defendant had the knowledge of the existence of the dangerous drugs inside the iPhone boxes. Could the same mode be adopted for delivery of dangerous drugs? Would it be equally consistent with the situation where the defendant had the knowledge regarding the dangerous drugs? These are also questions that you may find it relevant to consider.”

25.  The judge also told the jury that the $4,000 found in the van was not a significant sum which could otherwise be linked to the proceeds of any drug trafficking activity:[6]

“Members of the jury, for this $4,000 found on the defendant’s van you should not place too much emphasis on it. If you find that the defendant was having a genuine transportation business there is nothing strange to have $4,000 found on his vehicle. $4,000 is not a huge sum of money that would call for an explanation in view of the defendant’s income. Mr Raffell, in his closing speech invites you to conclude that this $4,000 was a reward for drug-trafficking rather than legitimate remunerations. I would ask you not to do so, as to do so would be a pure speculation as there is no evidence adduced by the prosecution linking the money to any drug-trafficking activities.”

26.  Having noted that the prosecution were relying on circumstantial evidence to prove the applicant’s involvement in trafficking, the judge identified the evidence from which the prosecution were inviting the jury to draw the inference that the applicant must have known of the presence of dangerous drugs in the iPhone boxes:[7]

“The prosecution is asking you to draw an inference that the defendant must know the existence of the dangerous drugs. Mr Raffell asked you to draw such an inference because he said the delivery could not be a legitimate one and the defendant must have known about this. Mr Raffell asked you to consider the following factors: the delivery was made at night; the delivery was not made to shops and places but at a car park; [PW5] was not asked to sign any receipt as proof of delivery; the defendant did not ask even the name of [PW5] before delivery; if it was a genuine iPhone delivery the defendant would at least ask [PW5] to identify himself and acknowledge receipt in some way to protect the defendant’s interest; last but not least, the value of the ketamine in the 12 iPhone boxes amounts to over HK$300 (sic) and it would be impossible for Ma or whoever behind to entrust the dangerous drugs to the defendant without involving him.”

27.  Finally, the judge highlighted the relevant question for the jury to consider:[8]

“Members of the jury, the question remains, having heard all the evidence, are you sure the defendant knew the existence of the dangerous drugs inside the iPhone boxes? If you are sure, you should convict the defendant. If you are not sure, you must acquit him.”

The applicant’s grounds of appeal

28.  Mr Grounds, with him Mr Herman Poon, have put forward five grounds of appeal, although the first three are different aspects of the same complaint.  In the event, it was only necessary to hear Mr Grounds on that particular complaint. The essential point is that the judge did not give any directions to the jury in his summing-up as to how they should treat the prosecution’s allegation that all of the previous deliveries of iPhones, including the four or five he had made with Ma and the two subsequent deliveries on his own, were in fact deliveries of ketamine.

The respondent’s reply

29.  Ms Denise Chan, on behalf of the respondent, stresses that when the judge summed up the evidence from which the prosecution were inviting the jury to draw the inference of knowledge, no mention was made of the previous deliveries of iPhones (see para 26 supra).  Further, the impact of the evidence of previous deliveries would have been inconsequential: either the jury were sure the applicant had trafficked on 27 February 2014 by reference to the evidence of what happened that evening, or they were not. They could not sensibly have arrived at that conclusion by reference to the earlier deliveries of iPhones on previous occasions.

Consideration

30.  This case demonstrates once again the dangers concerned with allegations by the prosecution of what are sometimes referred to as “uncharged acts” involving allegations of criminal conduct outside the specific events particularised in the charge sheet or indictment.  Such dangers were explained by this Court (differently constituted) in HKSAR v Muramova (unrep., CACC 420/2014, 31 August 2016).

31.  There can be no question, as in Muramova, that prosecuting counsel was entitled to explore the issue of the applicant’s claimed previous deliveries of iPhones, since the applicant himself had made them an important part of his explanation as to why he was making the same delivery on the evening of 27 February 2014.  Furthermore, prosecuting counsel was plainly entitled to adopt at the very least a “raised eyebrow” approach to the applicant’s explanation of these previous deliveries.  Indeed, he could have gone so far as to suggest that such previous deliveries did not take place or, if they did, that they did not involve iPhones.  After all, the applicant had opened himself up to cross-examination on matters the prosecution previously knew nothing about, and which went to the ultimate issue of knowledge of the presence of dangerous drugs.  Prosecuting counsel was not obliged simply to accept the applicant’s assertions but duty bound to test his credibility on the matter.

32.  Where such a situation arises, however, it is the responsibility of judges to ensure that the focus of the jury remains on the allegation particularised and, in respect of any evidence of uncharged acts, “to guard against misuse of that evidence by the jury for other purposes, for example as part of an impermissible process of reasoning in resolving whether key elements of the offence have been proven”.[9]  Here, as is clear from the passages in cross-examination cited, particularly those italicised at para 19 supra, prosecuting counsel was suggesting in terms that none of the applicant’s previous deliveries on behalf of Ma involved genuine iPhones, since those previous deliveries were themselves part of the subterfuge for trafficking in ketamine.  Put simply and starkly, all of the purported deliveries of iPhones involved drug trafficking.

33.  The judge, in putting the prosecution’s position, told the jury:[10]

“Mr Raffell said the purported transportation business of the defendant was merely a smokescreen to cover up his drug-trafficking activities. Even if there was a genuine transportation business, said Mr Raffell, the defendant could still engage in drug-trafficking activities to earn extra money. Members of the jury, you may agree or disagree with Mr Raffell.” (Emphasis supplied)

34.  In view of the way the prosecution were putting their case, it was in our judgment necessary for the judge to emphasise to the jury in his summing-up that, while the applicant’s evidence about his previous deliveries of iPhones was relevant to his defence that he did not know and had no reason to suspect that the consignment of iPhones he was asked to deliver on 27 February 2014 contained dangerous drugs, the prosecution were entitled to question his account of the previous deliveries and challenge his credibility on the issue.  However, even if they rejected the applicant’s evidence on the matter, the previous deliveries and the imputation that he had previously trafficked in dangerous drugs formed no part of the specific allegations in the indictment and could not be used to establish the elements of the offences particularised.  No such warning or direction along these lines was given: instead, it was left open to the jury to agree with prosecuting counsel’s proposition.  In all the circumstances, we think the omission of such a direction was a material non-direction.

Proviso

35.  We have given anxious consideration to the question of whether we should apply the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221.  There is considerable force in Ms Chan’s submission that the process of reasoning by which the jury arrived at its conclusions of guilt in relation to the allegations on 27 February 2014 would not have utilised the evidence of the previous deliveries, which were never part of the prosecution case.  Either the jury would have been sure of the applicant’s guilt in respect of the elements of the offences on 27 February 2014, in accordance with the judge’s directions on the burden and standard of proof, or they would not.  The evidence of the previous deliveries, whatever the jury made of them, could not have assisted the jury’s determination of guilt on the charges specified in the indictment.  Ms Chan reiterates that in the judge’s summary of the evidence relied upon by the prosecution to draw the inference of knowledge against the applicant, the previous deliveries were not mentioned.

36.  However, there is also much force in Mr Grounds’s response that, while they may not have been part of the way the prosecution originally put their case, the previous deliveries became part of their case; as the above excerpts of the proceedings make clear.  The applicant was effectively being painted at the end of the case as someone who had previously trafficked in dangerous drugs, and who must therefore have known what he was dealing with on 27 February 2014.  Mr Grounds contends that, ultimately, one cannot know the way the jury dealt with this evidence.  Had the necessary warning or direction been given, then this court would have been entitled to assume that the jury had abided by the instruction.  Since it was not given, we cannot make that assumption.

37.  The issue is finely balanced.  However, we have come to the conclusion, not without some hesitation, that we cannot apply the proviso.  There was a significant body of evidence adduced by the applicant and his witness to the effect that he operated a genuine transportation business. It was a matter for the jury what they made of that evidence and of the applicant.  We cannot say that the jury must inevitably have convicted had they received an appropriate direction that they must not use the imputation that the applicant had previously trafficked in dangerous drugs to decide whether the elements in the two specified counts on the indictment had been made out.

Consequent orders

38.  For these reasons we granted the applicant leave to appeal against conviction and allowed his appeal.  Since the allegations were serious ones, which had merited an overall sentence of 18½ years’ imprisonment, and given that the error which obliged us to allow the appeal was concerned with the approach to the evaluation of evidence rather than the quality of the evidence itself, we considered it appropriate that there should be a proper determination of that evidence by a jury properly instructed.  Accordingly, we ordered a retrial of the matter on a fresh indictment before another judge.  We further ordered that the applicant be granted the costs of the appeal limited to one counsel, to be taxed if not agreed.