HKSAR v. POSSO VERGARA CRISTHIAN ENRIQUE

CACC 373 /2018

[2020] HKCA 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 373 OF 2018

(ON APPEAL FROM HCCC NO 88 OF 2018)

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J U D G M E N T

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1.  The applicant and two other defendants (respectively “D2” and “D3”) were jointly charged with one count of unlawfully trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The allegation was that, on 2 June 2017, they together trafficked in 1,982 grammes of a solid containing 1,333 grammes of cocaine at the junction of Ferry Street and Man Wui Street in Kowloon.

2.  Whilst D2 pleaded guilty to the count alleged, the applicant and D3 pleaded not guilty and stood trial before Toh J (“the judge”) and a jury.  On 12 December 2018, the applicant was unanimously convicted by the jury: D3 was unanimously acquitted.  The applicant was duly sentenced to 24 years and 3 months’ imprisonment.

3.  Having filed a Notice of Application for Leave to Appeal (by way of Form XI) on 19 December 2018 in respect of both conviction and sentence, the applicant subsequently filed a Notice of Abandonment in respect of sentence on 18 May 2020.  Accordingly, under Rule 39 of the Criminal Appeal Rules, Cap 221A, his appeal against sentence was thereby deemed dismissed.  He now applies for leave to appeal against conviction only.

The prosecution case

4.  The prosecution called a total of 13 prosecution witnesses comprising nine Customs Officers, a taxi driver Mr Law Chi-ho (“PW7”), a DNA expert Dr WAI Wing-kong (“PW10”), D2 who testified as PW12 (“D2”) and an interpreter Madam Tom Gee (“PW13”).

5.  D2 was employed as a seaman in a container ship sailing from Columbia to Hong Kong.  When the ship was in Columbia, he accepted an offer from a Columbian to receive and deliver dangerous drugs in Hong Kong for monetary reward of US$7,000 per kilogramme delivered.  The container ship arrived in Hong Kong on 1 June 2017 at about 11 pm.  The following morning, an unknown person gave the dangerous drugs particularised in the Indictment and a SIM card to D2 on board the ship.  D2 was told there were 2 kilogrammes of dangerous drugs and he was to wait for someone to contact him.

6.  Later that morning, D2 received a telephone call from the applicant, whom D2 had not met before, via the SIM card given to him. The applicant asked to meet D2 at the Panda Hotel in Tsuen Wan where D2 was staying while in Hong Kong.  Subsequently, the applicant, D2 and D3 met in the lobby of the Panda Hotel.  After D2 had met the applicant, the three men boarded a taxi driven by PW7 heading towards Jordan.  On the journey, the applicant gave D2 a total of HK$105,100 in cash[1], consisting of two stacks of HK$500 notes (200 pieces of HK$500 notes in total) each being bound by two rubber bands, five HK$1,000 notes and one HK$100 note.  In return, D2 gave the applicant a black plastic bag[2] (“Exhibit P1”) containing the dangerous drugs in question.  The three men were intercepted by Customs Officers when they were alighting from the taxi at the junction of Ferry Street and Man Wui Street at around 3:35 pm.  When Customs Officer 1032 (“PW3”) revealed his identity to the applicant and requested a search, the applicant struggled free, threw Exhibit P1 and his black shoulder-bag[3] onto the ground and fled.  He was chased by Customs Officers and subsequently subdued, arrested and cautioned by PW3.  He remained silent under caution.  Meanwhile, D2 and D3 were also apprehended at the scene.

7.  Following his arrest, the applicant was placed in the custody of Customs Officer 7288 (“PW4”), who was assigned to be the applicant’s guard officer.  The applicant was taken by government vehicle to Hoi Fan Street, Kowloon where Customs Officers conducted a body search on the applicant and checked the contents of Exhibit P1.  The applicant was again arrested and cautioned, this time by PW4, but the applicant again did not respond.  Later the same evening, the applicant was accompanied by PW4 to hospital for medical treatment for an injury sustained when he was being subdued.

8.  D2 was subsequently taken back to the Panda Hotel where Customs Officers conducted a search of his hotel room.  He was then taken to Customs and Excise Department offices where the rucksack carried by D2 when he was arrested[4] was opened by Customs Officers in the presence of D2 and an interpreter assigned to him.  The banknotes, Exhibit P27, and a black plastic bag were found in D2’s rucksack. 

9.  Customs Officer 0896 (“PW5”) was instructed to be the guard officer of D3 following his arrest.  At about 7:35 pm on the same day, PW5 took D3 to confront the applicant at Customs Headquarters in North Point.  After the confrontation, PW5 brought D3 to seek medical treatment in respect of an injury sustained during his arrest.

10.  On 3 June 2017, the applicant was attended by PW13, a Spanish to Cantonese interpreter, during his detention.  PW13 said she did not see any blood on the applicant’s face or on his forehead, nor any superficial wounds on the applicant.  She recalled the applicant slept on the floor after he told the Customs Officer on duty that he was very tired.

11.  It was not disputed that Exhibit P1 contained the dangerous drugs particularised in the Indictment.  The street value of those drugs was estimated at more than HK$1.6 million.

Evidence of the DNA expert

12.  Exhibit P1, the applicant’s shoulder bag, the banknotes Exhibit P27, the four rubber bands holding the banknotes and D2’s rucksack were later sent to a forensic scientist, PW10, for DNA extraction, profiling and comparison with the DNA samples of the applicant, D2 and D3.  For the purpose of DNA sample extraction, PW10 divided the banknotes into 41 mini-stacks, each comprising 5 to 6 banknotes.  The following is a summary of PW10’s findings on the comparison between DNA samples extracted from the exhibits and buccal swabs taken from the applicant:

(1)     The traces of DNA found on Exhibit P1[5] allegedly carried by the applicant gave no results, or the results could not yield an analysis because of the poor quality of the traces[6];

(2)     The applicant could be “included as a possible source” of DNA mixture found on (1) the entire surface of one of the four rubber bands binding the banknotes and (2) the shoulder strap and edges of the applicant’s shoulder bag[7]. The applicant could be one of the contributors to a DNA mixture on a mini-stack[8].

(3)     The applicant could “not be excluded as a possible source” of DNA mixture found on the edges of one mini-stack comprising 5 HK$500 notes out of the 41 mini-stacks of banknotes[9].  The applicant’s DNA profile appeared in most of the 15 DNA profiling systems, save one or two systems[10].

(4)     It was “inconclusive” as to whether the applicant was a possible source of DNA mixture found on the edges of 5 mini-stacks each comprising five HK$500 notes out of the 41 mini-stacks of banknotes[11]. PW10 could not draw any conclusion from this result[12].

(5)     The applicant was “excluded” as a possible source on 16 mini‑stacks each comprising five HK$500 notes out of the 41 mini-stacks of banknotes[13].  DNA samples extracted from these mini-stacks were not from the applicant[14].

13.  PW10 explained that if a person’s DNA is found on an object, that person should have touched, or been in the vicinity of, the object[15]. A transfer would also require direct contact from the person concerned by way of pressure and friction on that object[16]. There would be greater chance of DNA being transferred when the surface of an object was porous or rough.  He considered a banknote to be a porous object[17].

The defence case

14.  The applicant elected not to testify at trial, nor did he call any witness.  By way of Admitted Facts, pursuant to S65C of the Criminal Procedure Ordinance, Cap 221, the applicant did not dispute that he had met with D2 and D3 at the Panda Hotel and boarded a taxi to the location where the three defendants were intercepted[18].

15.  Through questions put to the witnesses, the applicant’s case was that he did not know there were drugs present nor did he give any money to D2.  He had met D2 because he was intending to take him around Hong Kong.  It was put to D2 that he had framed up the applicant in order to get a reduced sentence from the court.

The grounds of appeal

16.  Mr Cheung, on behalf of the applicant on appeal but not at trial, originally put forward no less than 11 perfected grounds of appeal.  Ground 4 was subsequently withdrawn with the leave of the Court, while Ground 11 is a catch-all ground alleging that the conviction is unsafe or unsatisfactory.  Nevertheless, it is incumbent on me to consider whether any of them are reasonably arguable.  It is the position of Mr Ng, with him Mr Chui, that leave should not be granted on any of the grounds.

Consideration

17.  I shall deal with Grounds 3, 6, 9 and 10 first. Ground 3 avers that the jury were not invited to consider the reliability and credibility of all witnesses impartially and fairly, given that most of the prosecution witnesses were Customs Officers.  Like the respondent, I am rather baffled by this ground, for which Mr Cheung acknowledges there is no authority.  What was important was that the jury should not have been encouraged by anything the judge said into thinking that Customs Officers were somehow more worthy of belief than civilian witnesses.  But I can see no danger of that from the way the judge summed up.  The judge’s directions broadly followed the opening directions on the functions of judge and jury in Specimen Direction 1 of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute, informing them in terms to consider all the evidence in the case, including all Admitted Facts, and form their own judgments about what evidence was reliable and what evidence was not.  Reading the summing-up as a whole, I do not think there was any danger that the jury might have thought the Customs Officers were more credit-worthy than anyone else.  Ground 3 is not reasonably arguable.

18.  Grounds 6 and 10 concern factual errors in the recital of evidence.  However, I cannot see how these details remotely affected the issues the jury had to decide and Mr Cheung has not been able to show me how the applicant was in any way prejudiced.  As such, these grounds are not reasonably arguable.

19.  Ground 9 is in a similar category.  It is averred that the judge was wrong to say that PW4 was cross-examined by defence counsel acting for D3 when in fact he was not cross-examined by that counsel. Mr Cheung suggests that the jury might have been confused because the judge was actually referring to defence counsel’s cross-examination of PW5.  With respect, juries are not stupid.  They will have heard the same evidence the judge did and would have been more than capable of seeing that she had made a slip.  This ground is not reasonably arguable.

20.  Grounds 7 and 8 concern what the judge should have said about the DNA evidence.  Essentially, it is alleged that the judge’s directions were too generalised so as to mislead the jury into thinking that DNA was found “on the banknotes”[19] themselves rather than on the edges of some banknotes (Ground 7); and that she failed to make a particular point favourable to the applicant, namely, that since no DNA was found on Exhibit P1, which held two kilogrammes of cocaine, it was consistent with the applicant never having held the bag in the first place (Ground 8).  I do not regard either criticism as fair or yielding a reasonably arguable ground of appeal.  The judge’s directions when read as a whole were clear, fair and balanced and none of the criticisms now made on appeal were made to the trial judge by experienced trial counsel.  Moreover, PW10’s DNA report (Exhibit P86) was in the hands of the jury when they retired to consider their verdicts.  As Mr Ng points out, the point which Mr Cheung would like the judge to have made to the jury was in fact made by counsel for the applicant to the jury, and then repeated by the judge as part of her summing-up[20]:

“You will notice Mr Donald’s submission that if the 1^st defendant was holding the plastic bag with the drugs and threw it away on the ground, there must have been some friction caused and he questioned why the 1^st defendant’s DNA was not found on the plastic bag at least.”

21.  While Mr Ng was on his feet dealing with this ground of appeal, Mr Cheung further complained about a passage in the judge’s summing up that PW10 had explained that “DNA sometimes can fall off an object, sometimes if the grip is not tight enough, the person handling that object may not leave any DNA”[21]. This caused Mr Ng and Mr Chui to trawl through the evidence to identify where the judge had derived this evidence.  However, save for the reference to “fall off”, which could not be found, it seems to me that the statement by the judge of which complaint is made is an obvious conclusion from PW10’s evidence.  For, if “pressure and friction” on an object is required before someone’s DNA can be left on an object, the lack of pressure and friction may explain why DNA has not been deposited on an object.

22.  In respect of Grounds 3, 6, 7, 8, 9 and 10, Mr Cheung did acknowledge that individually they may not be enough to unsettle the conviction.  However, taken cumulatively, an independent bystander would wonder whether the applicant had had a fair trial.  I do not regard this argument as realistic or reasonable.

23.  Ground 1 concerns a legal direction, which it is said the judge did not give but should, in view of the dangers posed by D2 as a witness, have given.  As such, it seems to me that the ground is one of mixed law and fact, requiring leave.  The ground alleges that the judge failed to give an accomplice warning.  However, the law is clear: it is a matter entirely within the discretion of the trial judge whether and if so, in what terms, a warning should be given in respect of an accomplice witness.  As Mr Ng correctly points out, the jury were reminded that it was the applicant’s case that D2 was “framing” him up in order to obtain a reduced sentence for himself[22], which D2 appeared to be denying when he claimed he did not intend to get a discount, he merely wanted to clear his conscience[23].  Reading the summing-up as a whole, it would have been obvious that D2 stood to gain by giving evidence against the applicant.  I do not see that the judge was required to say anything more than she did.  The ground is not reasonably arguable.

24.  Ground 2 avers that the judge failed to direct the jury in accordance with Specimen Direction 45, inasmuch as they were never told that the applicant’s silence did not amount to an admission of any kind nor could it reflect a guilty conscience.  Mr Ng counters the complaint by saying that the jury were repeatedly told, in terms that were consistent with Specimen Direction 44, that the applicant did not have to prove his innocence and had no obligation to give evidence.  At the outset of her summing-up, the judge directed the jury[24]:

“Now, the prosecution must prove that each defendant is guilty.  Each of the defendants does not have to prove his innocence.  A defendant has no obligation to give evidence.  It is his right to sit back and say to the prosecution, “You brought the charge against me, you prove it.”

She gave two further similar directions[25].

25.  Accordingly, the jury were repeatedly told that the applicant did not have to prove his innocence and the fact that he neither gave evidence nor called witnesses proved nothing one way or the other and did nothing to establish his guilt.  The question remains, however, whether these were sufficient directions to deal with the fact that the applicant had, according to the prosecution, remained silent when he was arrested and cautioned.  Mr Cheung is correct that the judge did not give the jury a direction in accordance with Specimen Direction 45.

26.  It seems to me that, unlike Ground 1, this ground poses a pure question of law, which does not require leave to appeal.  Specimen Direction 45 dealing with a defendant’s right of silence was not given by the judge and it will be a matter for the Court of Appeal to determine whether that failure is material, in light of the other directions that were given under Specimen Direction 44; in view of the fact that English was obviously not the applicant’s mother tongue; and given that his case was that he did in fact speak when arrested and said that he had nothing to do with the dangerous drugs[26]. The absence of a direction on flight, in circumstances where one could well have been given, may also be relevant to this issue.

27.  Finally, I turn to ground 5.  It is said that D3’s election not to give evidence at his joint trial with the applicant thereby deprived the applicant of D3’s evidence which might have shown him to be innocent, thus denying the applicant a fair trial.  Notwithstanding that D3 has returned to Columbia following his acquittal and now says in an unsworn note that he is willing to give evidence by video link that the applicant is innocent, I cannot see how these assertions can be admissible as fresh evidence under section 83V of the Criminal Procedure Ordinance.  Quite apart from the fact that this “evidence” was available at trial had D3 wished to testify, at which stage the prosecution could have tested his account in cross-examination, his counsel could also have cross-examined D2 and the Customs Officers along the lines that are now put forward.  He did not.  In fact, counsel for D3 began his cross-examination of D2 at the trial by saying “I’m not going to suggest you’re lying”[27].

28.  Be that as it may, when Mr Cheung was taken to the provisions of section 83V of the Criminal Procedure Ordinance, and it was pointed out that D3 could not be ordered to be examined before the Court of Appeal under section 83V(1)(b) because he was not a compellable witness “in the proceedings from which the appeal lies”, he responded by submitting that the witness’s “note” was nevertheless receivable by the Court under section 83V(1)(a) instead.  The notion that D3’s assertions should be received by way of an unsworn note from beyond the jurisdiction, whereas D3 would not be entitled to give evidence on those matters as a compellable witness before the Court (even if he wished to appear, which it seems he does not) is an extraordinary and preposterous submission.  In any event, I do not accept that the note is likely to be credible or that it would afford any ground for allowing the appeal, even on a reasonably arguable basis.  The ground may be ingenious but it is not a reasonably arguable one.

29.  I am not prepared to grant leave to appeal against conviction on any of the grounds of appeal which require leave, namely Grounds 1, 3, 5, 6, 7, 8, 9, 10 or 11.  Ground 4 has been withdrawn.  As for Ground 2, it does not in my view require leave from this Court.

30.  I should inform the applicant that he has the right to renew his application for leave on any, or indeed all, of the grounds on which I have refused leave.  However, he should also be warned that the Court of Appeal has the power to order that any time spent in custody pending his appeal shall not count as part of the applicant’s sentence served if the Court were to come to the conclusion that the renewing of such grounds was not justified.