HKSAR v. CHAN MAN CHAU

CACC 503/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 503 OF 1999

(ON APPEAL FROM HCCC 135/1999)

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The 1st applicant Chan Man-chau and the 2nd applicant Wong King-chuen were convicted, following a trial before Deputy Judge Longley and a jury, of one charge of trafficking in approximately 12 kilogrammes of heroin hydrochloride and 157 kilogrammes of ice. The 1st applicant was sentenced to 26 years of imprisonment and the 2nd applicant to 20 years of imprisonment.

2. On 15 October 1998, Narcotics Bureau police officers on surveillance duty saw the 1st applicant drive a private car to a pier outside Cheung Sha Wan Fish Market where he dropped off the 2nd applicant and then drove away. Some 28 minutes later, he returned in the same car to the pier. He got off and together with the 2nd applicant, waited there for 10 minutes. A boat later arrived at the pier and a man on the boat passed some boxes and nylon bags to the two applicants. The two applicants then loaded these goods on to the private car which they subsequently drove away. Police officers followed the car and eventually intercepted it with the two applicants and the goods on board. The boxes and nylon bags were found to contain what was subsequently proved to be the dangerous drugs specified in the charge. The 1st applicant at an interview by the police after his arrest admitted having conveyed the boxes and nylon bags but he said he did not know they contained dangerous drugs.

3. The man on the boat which brought the dangerous drugs onshore gave evidence for the prosecution. His evidence was that when the boat departed from the mainland to Hong Kong, the boxes and bags were already loaded on board and he was asked to deliver them to the man whom he would contact by phone on arrival. He was given a piece of paper with a phone number on it and this phone number was admitted by the 1st applicant to be his phone number.

4. The 1st applicant's defence was that he did not know the boxes and bags contained dangerous drugs. The 1st applicant now applies for leave to appeal against conviction. The 2nd applicant acting in person also applies for leave to appeal against sentence but this has now been adjourned.

5. Dealing with the 1st applicant's application, the first ground of appeal relates to the Judge's summing-up at p. 4 line L to O and it is this:

6. It is submitted by Mr Boyson on behalf of the 1st applicant and relying on KWAN Ping-bong and Another [1978] HKLR 1 that it is for the prosecution to find the compelling inference and this direction was wrong because it amounted to telling the jury to acquit only if an alternative conclusion was as compelling as the guilt conclusion where it would be sufficient to acquit if the alternative inference is the only possible or probable inference and this is a reversion of the burden of proof.

7. We do not think this complaint is justified. That part of the Judge's summing-up being complained of must be viewed having regard to its context. What the Judge said in relation to inferences starting at line H on p. 4 of his summing up is this:

8. Earlier in his summing-up at p. 2 line K to P, the Judge told the jury about the burden of proof and the standard of proof in these terms:

9. Having regard to the summing-up in these terms, the jury could not have been under any misunderstanding that they should acquit if they have a reasonable doubt. What the Judge said was where there was an alternatively compelling inference from the facts, it must be obvious that the charge had not been proved beyond reasonable doubt. He did not say only in such a case that the applicant should be acquitted. The first ground is unsustainable.

10. The second ground complains that the Judge invited the jury to speculate about matters not received in evidence.

11. The complaint is in respect of what the jury were told at p. 18 line B to G of the summing-up. There the Judge said:

12. It is submitted for the 1st applicant that the Judge invited the jury to speculate on what the applicants were waiting for at the pier and suggested that they were waiting for a delivery from the sea. The Judge was also wrong, it is submitted, in requiring the applicants to give an explanation as to their purpose on the pier.

13. We disagree with that submission. What was said by the Judge was merely a view taken by him of the evidence and that was a view which the jury may or may not take into account. It cannot be an invitation to the jury to speculate. The Judge had warned the jury in clear terms not to speculate, this is at p. 4 line F to H of the summing-up:

14. The Judge also told the jury that it was their choice whether to take opinions expressed by the Judge into account, this is at p. 1 line P to T of the summing-up:

15. The second ground under these circumstances cannot be sustained.

16. The circumstantial evidence of the case is that it would be open for the jury to find the 1st applicant to have knowledge that the goods he took delivery from the boat at the pier were dangerous drugs and the jury did find so.

17. We see nothing wrong with the conviction and the application for leave to appeal against conviction must be dismissed.