HKSAR v. WU KWOK KEE

CACC 28/2019

[2019] HKCA 1284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 28 OF 2019

(ON APPEAL FROM HCCC NO 175 OF 2018)

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J U D G M E N T

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1.  On 10 January 2019, following a trial before Anthea Pang J (the judge) and a jury, the applicant was convicted by unanimous verdict of the jury of a single count of trafficking in a dangerous drug, namely 86.80 grammes of a crystalline solid containing 86.30 grammes of methamphetamine hydrochloride (commonly known as Ice) and 51.11 grammes of a mixture containing 35.80 grammes of heroin hydrochloride. He was sentenced to 11 years and 6 months’ imprisonment.

2.  On 1 February 2019, the applicant filed an application for leave to appeal against conviction.  He also applied for legal aid but it was refused on 29 April 2019.

3.  In his home-made grounds of appeal the applicant makes the following complaints about his conviction.

Ground 1: When directing the jury, the judge said that the dangerous drugs fell out from the recycle bag after the applicant picked it up from the floor in front of the police possibly because of his clumsiness which was very unfair to the applicant.  The applicant complains that he was told to pack up his stuff and leave the flat, and he therefore emptied the bag to put his electric drill inside it.

Ground 2: The applicant’s fingerprints were not found on the 7 packets of drugs found inside his waist bag and that this was evidence showed he had no knowledge of the drugs.  The applicant complains that he had put his waist bag on the floor and there were no drugs inside and it was later that the police officers found the drugs in his waist bag.

Ground 3: There was insufficient evidence to prove that the applicant was in control of the flat.  The applicant complains that he did not have a key to the front door of the flat and that the occupier of it had left together with another person to have something to eat.

4.  On 28 September 2017, the police were called to Room 306 on the 3^rd floor at 186 Cheung Sha Wan Road, Sham Shui Po, Kowloon by the landlady.  She had previously gone to the premises where she found present inside two males, one of whom was the applicant, and a female.  When the police arrived there, the other two had left and only the applicant was present inside the premises.  At the request of the landlady, the police asked the applicant to remove himself and his personal belongings from the premises.  In the course of doing so, a packet of drugs, suspected to be Ice, fell out from a green recycle bag which the applicant was picking up at the time.[1]  After he was cautioned by the police, he told them that the drugs did not belong to him.  He said that a person named Sunny asked him to come up to Room 306 to perform some ceremonial rituals and that he did not know there was a bag of Ice in the room. The police searched the room and uncovered a packet of heroin inside a Hello Kitty pink bag on the floor,[2] 7 packets of drugs (3 bags of Ice[3] and 3 bags and 1 packet of heroin[4]) inside a black waist bag, and a quantity of resealable transparent plastic bags and the applicant’s bankcard inside a banknote patterned bag.  They also found inside the premises drug paraphernalia, such as an electronic scale, a stack of empty resealable plastic bags and a number of blank betting slips, which the prosecution submitted were used for the purpose of packaging the drugs.  When they searched the applicant, they found a packet of heroin at the back of his waist, tucked between his belt and the waistband of his trousers.[5]

5.  The applicant at trial denied any knowledge of the presence of the drugs in the premises and suggested that the packet of heroin found on him may have been placed there by his friends.  He testified that he went to the room to perform ceremonial rituals for his friend, Sunny and had nothing to do with the drugs.  The defence case was that when the police arrived at the premises the door was open and this was consistent with his account that he was there to perform ceremonial rituals.  It was also put that the fact that the applicant remained in the premises and freely moved around inside before his arrest were indicia of his lack of knowledge of the drugs.  However, the prosecution case was that the applicant did not know that the landlady had reported the matter to the police after she had left the premises for the first time.  As for the drugs that were found in his waist bag, it was suggested that they might have been concealed by Sunny or his female companion when the landlady first attended the premises and confronted the three of them.  Sunny and his female companion then left, leaving the applicant alone in the room. 

6.  I will deal with each ground in turn. 

7.  As to Ground 1, the judge in her summing-up to the jury when addressing the issue of drawing an inference gave some examples, including the instance when the packet of drugs fell out of the bag.  She said:

“The defence also asks you to attach importance to the casual manner in which the accused pick up the green recycle bag, whereas the prosecution suggests that the falling out of the packet of ‘Ice’ was merely due to the clumsiness with which the accused pick up the bag.”[6]

8.  There was nothing unfair or inappropriate in the judge’s remarks to the jury.  She was setting out the respective cases of the defence and the prosecution in relation to this factual issue.  The prosecution as part of its case submitted that the packet of drugs fell out from the bag due to the applicant’s clumsiness at the time. 

9.  There is no substance to this ground of appeal.

10.  As to Ground 2, the applicant confirmed at the leave hearing that the reference to fingerprint evidence was a mistake and should be a reference to DNA evidence.  The applicant’s complaint is that his DNA was not found on the drugs or the packets containing the drugs.  However, the applicant’s DNA was found on a paper box which contained 562 resealable plastic bags, a banknote patterned bag which contained his bankcard and a quantity of empty resealable plastic bags, his waist bag which contained 7 packets of drugs together with two bankcards in his name, an octopus card and $4,866 cash.  

11.  The judge canvassed the DNA evidence with the jury when summing-up to them.  She noted the defence case that the applicant’s DNA was not found on the drugs or the packets containing the drugs and that where his DNA was found the applicant’s evidence was that he moved the items in question away from the folding table and therefore the DNA evidence did not assist the prosecution that he knowingly possessed the drugs.[7]  The significance of the DNA evidence was a matter for the jury to resolve.  It should be noted that it was not in dispute that the waist bag in which the 7 packets of drugs were found belonged to the applicant. 

12.  I do not find this ground to be reasonably arguable. 

13.  As to Ground 3, the issue that the jury were asked to consider was whether the applicant was in possession of the drugs for the purpose of trafficking.   The judge relevantly focused on whether or not the applicant was in possession of the drugs.  She gave the standard directions to the jury on this issue.[8]

14.  There is no substance to this ground of appeal.

15.  I do not find the grounds of appeal to be reasonably arguable, and it is clear that the judge gave a fair and comprehensive summing-up to the jury.  Accordingly, I refuse the applicant leave to appeal against his conviction. 

16.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.