HKSAR v. ROJAS MONTOYA JUAN PABLO

CACC 78/2021

[2023] HKCA 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 2021

(ON APPEAL FROM HCCC NO. 276 OF 2019)

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REASONS FOR JUDGMENT

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

Introduction

1.  Following a trial before Alex Lee J (“the judge”) and a jury, the applicant was convicted of one count of trafficking in a dangerous drug, namely 1,856.68 grammes of a solid containing 1,607.70 grammes of cocaine.[1] The applicant then applied for leave to appeal against conviction but his application was refused by a Single Judge on 26 January 2022[2].

2.  Having been refused legal aid and having been informed by the Bar Free Legal Service as well as the Clinical Legal Education Office of the University of Hong Kong that there were no merits in his appeal, the applicant acted in person to renew his application before us but we rejected his application and dismissed his appeal at the conclusion of the hearing on 6 October 2022. The following are our reasons.

Prosecution case

3.  The applicant was the tenant and the registered user of electricity of a flat in Gold Coast, Tuen Mun (“the flat” and “the building” respectively). On 19 March 2018, he was intercepted by Customs Officers who found in his possession a key to the flat. Upon search, the dangerous drugs, largely contained in six packets and having a total value of $1.87 million, and some paraphernalia were found in a bedroom which was fitted with soundproof material (“the bedroom”). When questioned, the applicant claimed that he lived at another address and the unfurnished flat was “for party and work”[3].

4.  The agreed CCTV evidence depicted the applicant appearing at the building’s lift lobby on 7, 9, 15, 16 and 17 March 2018, either on his own or with one Mr Olinder (“Olinder”) arriving at the same time, or immediately before or after Olinder had arrived. The duration of the applicant’s presence in the flat, together with the bags and suitcases brought to the building as well as the paraphernalia found, was relied on by the prosecution as circumstantial evidence to prove the applicant’s involvement with the drugs.

5.  The applicant was the only person named in the count on the indictment. However, as the evidence developed and since it was an admitted fact that a fingerprint of Olinder was found on the door to the bedroom, the prosecution ultimately alleged that the applicant was in possession of the drugs, either solely or jointly with Olinder.[4]

Defence case

6.  The applicant elected to testify. He claimed that in order to do a favour to Olinder, who was away from Hong Kong between 6 and 8 March 2018, he had arranged for the tenancy but would later change the name of the tenant to Olinder. In respect of all his visits to the flat, the applicant gave an innocent account and whilst admitting that he had stayed in the flat alone or with Olinder, he denied having entered the bedroom and denied having any knowledge as to the presence of the drugs. The applicant also asserted that he had not told the Customs Officer that the flat was “for party and work”.

7.  According to the applicant, Olinder was the true occupier of the flat and it was Olinder who took the suitcase to the bedroom on 9 March 2018.

Summing-up

8.  The judge directed the jury on possession as follows:[5]

“… A person is in possession of an object if all the following conditions are satisfied, that is to say, (1) the object is in the person’s actual physical custody, for example, in his hand or in his pocket, or is otherwise within his control, for example, in his vest or in his bedroom; (2) the second condition is that the person knows that the object is there; (3) the third condition is that the person has the intention to exercise custody or control over the object.

A person can be in possession of something even if he is not its owner. In other words, one may possess an object even though he does not own it. Ownership is therefore not important for the concept of possession.”

9.  The judge then went on to give three examples to explain the concept.[6] In terms of joint possession, he said:[7]

“Now, in the present case the prosecution says the cocaine in the Gold Coast apartment was in “joint possession” of the defendant and Olinder, so what is “joint possession”? An object may be possessed by more than one person at the same time. If two or more people agree to give a pool of articles or a particular product in one place and any one of them may go there to take or move some of the articles as and when they see fit, then all are in control of that product in the sense that I have described control and all are in possession of it. So much for the concept of “possession” and “joint possession”.

Now, in order for the prosecution to establish the charge, apart from proving that the defendant was in possession or joint possession of the dangerous drug which is the subject matter of the charge, cocaine, the prosecution also have to prove that the defendant knew that what he had in his possession was a type of dangerous drug. Suspicion is never enough. It is also not enough to prove that the defendant knew that what he had was something illegal. The prosecution must prove that the defendant knew that what he has in his possession was dangerous drugs.

However, it is not necessary for the prosecution to prove that he knows exactly what type of dangerous drug it was, whether it was cocaine, heroin, ketamine, ‘Ice’, etc. Moreover, it is not necessary for the prosecution to prove that the person knows the exact quantity of the dangerous drug concerned.”

10.  Concerning the lack of evidence from Olinder, the judge specifically asked the jury not to speculate[8] but said that Olinder’s departure and arrival records on 6 March 2018 and 8 March 2018 respectively “tends [lends] some support to what the defendant says had happened”.[9]

Grounds of Appeal

11.  The applicant initially advanced 7 grounds of appeal but after leave had been refused, he only sought to renew Grounds 1, 4, 5 and 7, which are in these terms:

Ground 1:	the Prosecution unfairly widened the scope of their case from one of sole possession to joint possession.
Ground 4:	the judge failed to direct the jury in respect of uncharged acts as the prosecution, during cross-examination, had suggested that the applicant had trafficked in the drugs prior to the date of the present offence.
Ground 5:	The judge’s direction on “possession and joint possession” was incomplete as he had omitted the last part of Specimen Direction 61.3.
Ground 7:	The conviction was unsafe and unsatisfactory because of the earlier grounds, whether taken individually or cumulatively.

Discussion

Ground 1

12.  There is no merit in this ground.

13.  As pointed out by Mr Nicholas Wong for the respondent, before the trial commenced, the prosecution was of the view that the case was insufficient against Olinder. However, there was a change when the applicant told the jury in his evidence that Olinder had a key to the flat and that it was Olinder who brought the suitcase to the bedroom where the drugs were found next to the suitcase.

14.  In the circumstances, we are of the view that the prosecution was quite entitled to aver either sole or joint possession of the drugs. The sole possession was based on the circumstantial evidence adduced such as the tenancy, the applicant’s possession of the key, the periods of the applicant’s stay at the flat, the unfurnished state of the flat, and his reply after arrest whereas on the assertions made by the applicant concerning Olinder, the prosecution was also entitled to ask the jury to consider joint possession with Olinder. There was nothing irregular about the judge’s directions.

15.  Moreover, the applicant suggested that if Olinder had been charged, he would have appeared in the trial and would have testified in the applicant’s favour. This submission ignores the fact that if Olinder was jointly charged with the applicant, Olinder, as his co-accused, could not be compelled to testify. Even if Olinder did elect to give evidence, he might well implicate the applicant instead of giving evidence in the applicant’s favour. In short, we did not see any prejudice caused to the applicant simply because Olinder was not charged. There is no merit in this complaint.

Ground 4

16.  In relation to Ground 4, the applicant argued that the following question asked by prosecuting counsel when cross-examining him might have given the jury the impression that he was, prior to the date of the offence, also trafficking in drugs:

“Q.	You see, I suggest all the times that you say that you were doing various things and in fact most of the time that you spent at this flat related to packaging and dealing with dangerous drugs.
A.	My answer is, sir, that the answers that I’m giving here I’m telling the truth. I swore to God to tell the truth, only the truth and nothing but the truth. I hope that my testimony be taken into consideration.”[10]

17.  As pointed out to the applicant at the hearing, the question quoted above had nothing to do with uncharged acts and was permissible. Uncharged acts generally refer to criminal offences that are separate and distinct which should be charged on their own as they are independent of the offence for which an accused is being tried. That is not what happened here. In the present case, the prosecution alleged that the drugs had to be retrieved from the cylindrical objects found in the bedroom and such retrieval would necessitate cutting work to be carried out. It was therefore submitted that the applicant’s previous visits to the flat and the time he spent there would be relevant in considering whether or not the prosecution case had been made out. In Mr Wong’s words, the evidence helped to “set the scene” and there was nothing objectionable about it.

Ground 5

18.  As to Ground 5, the applicant submitted that the judge was duty-bound to give the jury a full direction, following Specimen Direction 61.3, including the last paragraph which reads:

“But a person’s mere presence in the vicinity of an object is not of itself possession of it. If a person is invited for dinner to a friend’s home, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. The objects are not in his physical custody and he has neither the intention nor the authority to exercise control over them.” (emphasis added)

19.  This ground would appear to have arisen from a misunderstanding on the part of the applicant as to the applicable legal principles. As highlighted above, this last paragraph of the Specimen Direction seeks to address a situation in which an accused knows that the object is there and is physically present in the place where the object is found but has neither the intention nor the authority to exercise control over it. There was, however, nothing similar in the applicant’s case here. He had adamantly denied having any knowledge of the drugs and in the circumstances, the judge was correct to have left out the last paragraph when directing the jury.

Ground 7

20.  Having rejected each of Grounds 1, 4 and 5, we also found no merits in this general ground. In fact, we consider the judge’s summing-up to be both comprehensive and well-structured. The conviction was neither unsafe nor unsatisfactory.

Conclusion

21.  We refused the renewal application and dismissed the appeal.

22.  Mr Wong invited this court to make a loss of time order against the applicant and we, accordingly, had asked the applicant to address us as to why such an order should not be made.

23.  In gist, the applicant submitted that it was never his intention to waste the court’s time, nor to show the court any disrespect. The applicant said that he did not make the application maliciously and had filed all the documents in a timely manner. He therefore invited the court to be merciful.

24.  We note that the applicant did not renew all the grounds after leave had been refused. However, since we found the renewed grounds wholly unarguable and without merit, we considered that a loss of time of one month would be appropriate and we so ordered.