HKSAR v. CHUNG YIU LAM

CACC 252/2018

[2021] HKCA 1544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 252 OF 2018

(ON APPEAL FROM HCCC 36 OF 2018)

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R E A S O N S  F O R  J U D G M E N T

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

Introduction

1.  The appellant was charged with one count of “trafficking in a dangerous drug”[1], the particulars of which alleged that on 18 September 2014, he, together with Yeung Hoi-ting (“Madam Yeung”), unlawfully trafficked in 4.86 kilogrammes of methamphetamine hydrochloride (“ice”). 

2.  The appellant pleaded not guilty but was convicted after a trial conducted before Yau J (“the judge”) sitting in the Court of First Instance with a jury.  Upon conviction, the appellant was sentenced to 28 years and 9 months on 16 August 2018.  He applied for leave to appeal against his conviction on 29 August 2018 which application was granted by a single judge[2]. 

3.  At the end of the hearing before us, we allowed the appeal and quashed the conviction.  After considering parties’ submissions, we ordered that the appellant be re-tried before another judge on a fresh indictment.  These are our reasons. 

The prosecution case

4.  On 18 September 2014, at about 8:40 am, a team of police officers were mounting an anti-narcotics operation in Mong Kok.  Seeing the appellant act suspiciously, the officers followed him on a taxi to Sheung Shui Railway Station.  Upon arrival, the appellant was joined by Madam Yeung.  At that time, she was carrying a blue backpack over her chest and a “Paddington Bear” bag (the “Bear Bag” as referred to by the judge in his summing-up) on her right shoulder. 

5.  The couple chatted while walking in the direction of the urban taxi-stand in the course of which the appellant handed Madam Yeung a wad of banknotes.  Madam Yeung then put them into the outer compartment of her rucksack.  These banknotes in the total sum of HK$20,000 were recovered after her arrest. 

6.  The appellant later boarded the first taxi in the queue and told the taxi driver to go to Mong Kok.  He took the seat behind the driver and Madam Yeung put the Bear Bag on the floor in front of his seat.  The two continued chatting for a while until Madam Yeung was about to leave and the appellant about to close the taxi door, the police officers then rushed forward and stopped them from leaving. 

7.  The police found inside the Bear Bag a white plastic bag containing a black plastic bag with four packets of ice as particularised.  The estimated street value was about HK$1.99 million.  It was an admitted fact that only one fingerprint was found on the black plastic bag and it belonged to someone other than Madam Yeung and the appellant. 

8.  At the time of arrest, the appellant had HK$9,281 cash and three mobile telephones, one of which was registered against his name, his HKID card number and his address, whereas the other two had in them prepaid SIM cards that were not registered to any person.  It was also admitted that since 5 September 2014 and up to the time of their arrest, 38 calls had been made between the appellant’s mobile telephone and the Hong Kong and Mainland telephones of Madam Yeung. 

9.  Moreover, the jury had been told that Madam Yeung had pleaded guilty to trafficking in the ice in question in a separate hearing and was sentenced to 18 years and 10 months’ imprisonment.  Also admitted were Madam Yeung’s drug-related criminal records, namely, one of drug trafficking in 2011 for which she went to prison for 30 months, and one of drug possession in 2014 for which she was sent to the Drug Addiction Treatment Centre. 

10.  In his unchallenged video-recorded interview (“VRI”), the appellant refused to answer most of the questions.  In respect of those that he did answer, he denied knowing Madam Yeung, the source of the ice in the Bear Bag, and the reason for her to hand him the bag.  The appellant said he had “no explanation” for the money in Madam Yeung’s rucksack and did not want to talk about it.  He had no impression about the telephone calls made between him and Madam Yeung shortly before his arrest and had “no explanation” for the ice.  Lastly, the appellant said that he was unemployed at the time. 

The defence case

11.  The appellant testified but called no witness.  It was his case that he and Madam Yeung had been lovers for about eight months at the time of the offence and they called each other on a daily basis.  Concerning his income, the appellant said he received a commission of about HK$10,000 per week from operating two unlicensed mah-jong establishments. 

12.  On the day of his arrest, the appellant received a call from Madam Yeung.  She was returning from Shenzhen and suggested meeting with the appellant.  He then went to Sheung Shui Station to receive her.  When they met, Madam Yeung revealed that she might be pregnant.  Their discussion then became an argument over whether to keep the baby which left them both unhappy. 

13.  The appellant suggested having a pregnancy test first.  He led Madam Yeung to the taxi-stand.  He said they were in fact arguing all the way to the taxi stand and he denied giving her any money.  At that time, he was planning to first go to Tsiu Keng Village, where Madam Yeung’s home was, to drop off her belongings; after that, they would go to Mong Kok for a pregnancy test. 

14.  According to the appellant, after boarding the taxi, he told the driver to head to Tsiu Keng Village before going to Mong Kok.  Madam Yeung then put the Bear Bag on the right side of his right leg before getting onto the taxi herself.  The appellant said that it was at this point the police officers rushed forward and arrested them. 

15.  In his testimony, the appellant admitted that he had lied in the VRI about not knowing Madam Yeung.  He said he did so out of anger and frustration towards her for putting him into trouble.  Further, he admitted lying about being jobless since it was illegal to operate an unlicensed gambling establishment.  The cash found on him represented the commission he received and the two other telephones he carried were used in connection with his gambling business. 

The judge’s uninvited direction on the alternative basis of “aiding and abetting”

16.  In the course of directing the jury, the judge, on his own motion, introduced an alternative basis of “aiding and abetting” as follows:

“ You will remember I have said I am going to deal with the situation where you come to the view that the defendant knew that there was dangerous drug in the bear bag but had no intention to exercise control or custody over the dangerous drug. That is to say, you come to a finding of facts that the defendant was only travelling with Madam Yeung in the same taxi to take Madam Yeung to her home to put down the things she was carrying and then to take her to Mong Kok for medical treatment knowing that the bear bag she was carrying contained dangerous drug. That is to say, if you come to a finding of facts that the defendant, despite knowing that there was dangerous drug inside the bear bag, he had no intention or he might not have any intention to take possession of the dangerous drug or to have possession of the dangerous drug together with Madam Yeung.

In the event of such a finding of facts by you then the following are applicable and relevant. It is a fundamental principle in criminal law that mere presence at the scene of a crime is not enough to prove guilt, but a person who assists or encourages another to commit a crime is guilty of the same offence.

In this case you can only convict the defendant on such a finding of facts if you are sure about all the following matters:

(1) Madam Yeung was trafficking in the ‘Ice’ in question;

(2) The defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. It is not necessary to prove that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking specifically in ‘Ice’. You will remember this is similar to the knowledge required in possession of dangerous drugs for the purpose of trafficking I have explained to you. So the prosecution need only to prove that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug.

(3) The defendant did acts, no matter great or small, which helped or encouraged Madam Yeung in the trafficking;

(4) The defendant intended to do the acts which he knew to be capable of helping or encouraging Madam Yeung in the trafficking.

Help and encouragement are simple words and you must apply the ordinary meaning of the words in deciding whether there was conduct of the defendant which did help or encourage Madam Yeung.

You must bear in mind that there must be either aid or some conduct of the defendant which in fact helped or encouraged Madam Yeung in trafficking.

As for encouragement, it involved some form of transmission of encouragement by words or conduct. You must not simply equate knowing and voluntary presence or no intervention during commission of the offence with encouragement. You may like to know that even if you know that an offence or crime is going on and you take no action to intervene, you do not commit an offence. You have no obligation to intervene in the commission of a crime.

So if you are merely present in the scene of crime and you knew that the crime was going on and you took no action about it, then your mere presence there will not amount to any offence at all. But if you do any act to help or encourage the person to commit the crime or the offence, then you are guilty of the same offence. Of course, you have to consider the four matters I have just told you.

In this case there is no dispute that Madam Yeung committed the offence of trafficking in a dangerous drug, ie, the ‘Ice’ in question. You therefore have to consider whether the defendant, in travelling together with Madam Yeung on board of the taxi to take her home, to put down the things she was carrying, knowing there were dangerous drug in the bear bag and then taking Madam Yeung to Mong Kok to see a doctor, amounted to helping or encouraging Madam Yeung in committing the offence of trafficking in a dangerous drug. It is a matter for you to decide.

Of course, you have also to decide, as I explained to you as the second matter among the four matters, that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. You have to consider the evidence in its entirety to see if the prosecution can prove this beyond a reasonable doubt. If it is your finding that the prosecution has proved this matter beyond a reasonable doubt, then you are entitled to take this matter into account in deciding whether what the defendant did amounted to help or encourage Madam Yeung in trafficking of the dangerous drug.

Of course, in this connection, you have to consider the explanation of the defendant, if you so accept his explanation, that the purpose of the trip was to take Madam Yeung to Mong Kok to see a doctor to confirm if she was pregnant. So at the end of the day you have to consider the entirety of the evidence and, depending on your finding of facts, to determine this issue. If you are sure of all the four matters I have just mentioned, then you must find the defendant guilty of the offence. If you are not sure of any of these matters or any one of them, you must find the defendant not guilty.

So to make sure you are clear about this, I think I better repeat the four matters to you again. The four matters are, firstly, that Yeung was trafficking in dangerous drug and I think you all remember that there is no dispute about this matter. The second matter is the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. The third matter is the defendant did acts, no matter great or small, which helped or encouraged Madam Yeung in the trafficking. Fourth matter, the defendant intended to do the acts which he knew to be capable of helping or encouraging Yeung in the trafficking. So all these matters must be fulfilled and must be proved beyond reasonable doubt by the prosecution.”[3]

17.  When the trial resumed on the following day, both prosecuting and defence counsel voiced their objection to the direction given and insisted on adhering to the all-or-nothing joint enterprise direction.  They were ad idem that the prosecution case was simply that either the appellant was in knowing joint possession of the dangerous drug with Madam Yeung, or he was not.  However, the judge was not persuaded and took the view that the alternative basis was necessary in order to “cover all possibilities”^[4].  He thus refused to withdraw the direction he had given. 

The appellant’s ground of appeal

18.  By the “Amended Perfected Grounds of Appeal Against Conviction” filed on 4 August 2020, the appellant raised only one ground of appeal, that is, the judge had erred by introducing to the jury “aiding and abetting” as an alternative basis to convict the appellant.  Mr Andrew Bruce, SC, with him Mr Phil Chau, SC, for the appellant said that this ground is three-fold. 

19.  Firstly, while the appellant accepted that in appropriate cases, a trial judge does have power to consider or direct on a basis different from the case presented by the prosecution when such is open on the indictment and the evidence^[5], it was contended that the doctrine of “accessorial liability”, as distinct from “basic joint enterprise”, had no conceivable application to the present case.  Mr Bruce emphasised that the prosecution case was all along conducted on the sole basis that the appellant and Madam Yeung were acting in a joint enterprise to traffick in the ice in that when the Bear Bag was put near the appellant, Madam Yeung had already passed possession to the appellant, who then possessed the ice for the purpose of trafficking^[6].  The prosecution never suggested in the course of the trial that, alternatively, the appellant’s conduct could amount to aiding and abetting Madam Yeung in trafficking the ice.  In the circumstances, the judge erred without first giving notice to trial counsel that such a direction would be given, thereby depriving the appellant an opportunity to meet the alternative basis in his evidence as well as in his counsel’s closing speech (“the first complaint”). 

20.  Secondly, it was submitted that the appellant’s conduct, as identified by the judge in the summing-up, could not have amounted to acts capable of assisting or encouraging Madam Yeung’s trafficking.  There was, it was said, no useful guidance from the judge as to how such domestic events, which were entirely consistent with the form of relationship the appellant had with Madam Yeung according to the evidence he gave, could have assisted or encouraged Madam Yeung in drug trafficking (“the second complaint”). 

21.  Thirdly, it was the appellant’s submission that the judge’s direction was wrong in that he had departed from Specimen Direction 8.13[7], as promulgated by the Judicial Institute, by adding that the prosecution was to prove that the appellant had “contemplated or realised there was a real risk that Madam Yeung was trafficking in a type of dangerous drug” when, as a matter of law, it would not be adequate that the appellant only intended to assist what “might be” drug trafficking; the judge should have told the jury that they must find the appellant “intended to” assist or encourage Madam Yeung in drug trafficking^[8] (“the third complaint”). 

The respondent’s submissions

22.  Ms Vinci Lam, SC, with her Ms Hermina Ng, SPP, for the respondent, submitted that the judge did not err in introducing the alternative basis of aiding and abetting to the jury as it was the appellant’s evidence in the witness box that he and Madam Yeung were lovers, and that they intended to first go back to Madam Yeung’s home to unload her belongings (including the Bear Bag) before going to Mong Kok.  His evidence therefore provided the evidential foundation for the judge to introduce the aiding and abetting scenario.  While it was conceded that “it would be better” if the judge had raised the matter with counsel before he so directed, Ms Lam emphasised that both counsel had the opportunity to make submissions to the judge after the direction had been given.  In the circumstances, the appellant had not been deprived of a fair trial.  In particular, it was submitted that since the appellant had all along denied having knowledge of the ice, he would not have run his case differently; and that had he been cross-examined on the alternative basis, he would still have denied having done anything to assist or encourage Madam Yeung to traffick in the ice.  Accordingly, no prejudice or disadvantage could have resulted. 

23.  In respect of the acts relied on by the judge to give the “aiding and abetting” direction, the respondent submitted that those acts should be viewed in a wider context, starting from the appellant’s agreeing to travel to Sheung Shui to meet with Madam Yeung in the early morning, up to the time when she placed the Bear Bag next to the appellant, in particular, the appellant’s evidence that he had asked the taxi driver to make two stops.  Thus, the respondent suggested that the act of the appellant accompanying Madam Yeung could have reasonably been viewed as assistance and encouragement to Madam Yeung, such as to cover for her, to act as her look-out, or to simply make her “feel bolder” and that it was “an obvious alternative verdict which is supported by the evidence of that alternative”[9]. 

24.  In respect of the form of the direction, the respondent contended that it was essentially couched in the same way as the one considered by the Court of Appeal in HKSAR v Nanik[10]. 

Discussion

The first complaint

25.  In Hau Tung Ying, Chan PJ, as he then was, observed that “in appropriate cases, the [a] judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that this is open on the indictment and the evidence and the parties are given an opportunity to address the judge before he takes that course.”^[11]  What is immediately apparent from this statement is that the direction has to be based on the evidence at trial (the appellant’s second complaint) and that the parties should be given an opportunity to address the judge before he does so (the appellant’s first complaint).  Needless to say, the importance of affording the parties, in particular, the defence, an opportunity to address the court on the new basis relates to the question of whether the defendant has suffered any disadvantage or prejudice, thereby rendering his trial an unfair one.  The court’s emphasis on a defendant’s right to a fair trial is highlighted by Chan PJ in Hau Tung Ying when he said that, “It is also clear from these authorities that where the trial judge departs from the prosecution’s elected case, whether the appellate court should quash his conviction must depend on the fairness of the case, including in particular any disadvantage or prejudice which might have been caused to the accused.”[12]

26.  In the present case, the judge had given the “aiding and abetting” direction to the jury without any prior notice to the parties.  Mr Bruce submitted that the problem with this course was that it was then not possible for the defence to deal with the new basis by way of evidence or to properly address the issue before the jury in the defence’s closing speech, thereby causing prejudice or disadvantage to the appellant.  While Ms Lam suggested that the appellant was not at all prejudiced because he would have maintained his stance of not being aware of the drugs, such a submission, with respect, would seem largely based on speculation.  Putting the question of adducing further evidence aside, it would seem to us that at the very least, if the parties had been alerted to this direction, the defence would have had the opportunity to hear the prosecution’s submissions in relation to the identified acts, to properly deal with them, and to address the jury that the acts identified might not amount to any assistance or encouragement in Madam Yeung’s drug trafficking activity. 

27.  Plainly, such an opportunity was never afforded to the defence in this case.  Further, given the prosecution case presented at trial and the appellant’s own evidence, it would not be difficult to imagine how this further direction must have come as a complete surprise to the defence.  The “aiding and abetting” act, according to the judge’s direction, involved on the one hand, the appellant knowing that there was a dangerous drug in the Bear Bag, but, on the other hand, not intending to take possession of it but yet intending to aid and abet Madam Yeung in her drug trafficking.  This was not the case put forward by either party and was a “hybrid” of the prosecution case of joint enterprise and the defence case of a complete absence of knowledge. 

28.  We therefore came to the view that Mr Bruce’s first complaint was made out and that the appeal should be allowed as the appellant had suffered prejudice or disadvantage when he was not afforded an opportunity to address the court before the direction on the new basis was given. 

The second complaint

29.  In the course of this hearing, we questioned the evidential basis upon which such a direction was founded and Ms Lam suggested that the appellant himself had said under cross-examination that he did not have the intention to receive the Bear Bag[13] (the not taking possession point).  However, we note that the appellant had also repeatedly denied that he knew there was drug in the Bear Bag.  Hence, it would appear to us that to invite the jury to find that the appellant knew of the drug but that he refused to take possession and was merely assisting Madam Yeung to traffick in the drug would, in effect, be asking them to act on one denial but not the other made by the appellant when there was no cogent basis to distinguish the two. 

30.  Moreover, on this question of whether there was evidence to support the “aiding and abetting” direction, all that the respondent could point to, apart from the agreement to meet up with Madam Yeung, was the appellant’s claim that he was going to send Madam Yeung back home so that she could put down her luggage, impliedly including the drug.  Keeping Madam Yeung company there and then as well as during the journey was, it was submitted, what constituted the “aiding and abetting” acts.  In our view, such was a very flimsy basis for the jury to be directed on an “aiding and abetting” limb. 

The third complaint

31.  In respect of the third complaint, it is perhaps important to note that the phrase “a type of dangerous drug” was repeatedly used by the judge when giving the direction on “contemplation” and “realisation”[14]and he said, “You will remember this is similar to the knowledge required in possession of dangerous drugs for the purpose of trafficking I have explained to you.”[15].  Earlier on, the judge had told the jury that

“ The prosecution only have to prove so that you are sure that the defendant knew it was dangerous drug. That is to say, it does not matter even if the defendant thought that the substance was ketamine, cocaine, heroin or some other kind of dangerous drug and it turns out to be ‘Ice’. The important thing is that the prosecution must prove beyond a reasonable doubt that the defendant knew that there was dangerous drug inside the bear bag.”[16]

This background should therefore be borne in mind when examining the direction in question. 

32.  It would appear that when these relevant parts of the summing-up are read together, the “contemplation” direction was not a departure from the proof of knowledge required on the commission of the offence by the principal offender.  Rather, it related only to there being proof of “a type of dangerous drug” instead of the precise drug that was being trafficked.  

33.  Mr Bruce, however, complained that even if the judge might be giving the “contemplation” direction relating only to the “type of dangerous drug”, such a formulation would be confusing to the jury and was a departure from the Specimen Direction, the 2020 version of which requires the judge to direct the jury to be sure that (1) the offence was committed by the principal offender; (2) the defendant was aware in advance that the offence was to be committed; (3) the defendant intended to assist in the commission of the offence; and (4) the defendant in fact assisted in its commission.  The respondent, on the other hand, submitted that the judge’s “aiding and abetting” direction was the same as that in Nanik and therefore there was nothing irregular about it. 

34.  We have already stated that this appeal should be allowed based on Mr Bruce’s first complaint.  We therefore do not consider it necessary to delve further into this third complaint.  Suffice for us to say that in the case of Nanik, the court was merely reciting the direction as the necessary background and the form of such a direction was never the issue examined. 

Conclusion

35.  For the reasons given, we allowed the appeal and quashed the conviction. After hearing the parties, we considered that it was in the interests of justice to order a re-trial before another judge and we so ordered.