HKSAR v. CHUNG SAI WAH

CACC 367/2017

[2019] HKCA 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 367 OF 2017

(ON APPEAL FROM HCCC NO 224/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  The applicant applied for leave to appeal against his conviction, which took place on 2 November 2017 before M Poon J (“the judge”)and a jury, of one count of trafficking unlawfully in a dangerous drug, namely 852 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. For this offence, the applicant was sentenced to 21 years’ imprisonment.

2.  At the hearing of the application, we granted it in respect ofGround 2 only, quashed the conviction and, exercising our power under section 83A of the Criminal Procedure Ordinance, Cap 221, we substituted a conviction for attempted trafficking contrary to section 159G of the Crimes Ordinance, Cap 200 and section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and sentenced the applicant to 21 years’ imprisonment.  We said we would hand down our reasons for our judgment at a later date.  These are our reasons.

The trial

3.  The arrest of the applicant resulted from a controlled delivery operation conducted by officers of the Customs and Excise Department.  The circumstances which led to the controlled delivery taking place were the subject of Admitted Facts, whilst what took place in the course of the controlled delivery was proven by the testimony of Customs Officers and the drug trafficker who had earlier been arrested by them.  The controlled delivery took place in a hotel room which the applicant attended and where the Customs Officers lay in ambush. 

4.  It was the prosecution case that the applicant knew that there was cocaine in the hotel room and that he went there to deal with it, and that a statement which the prosecution alleged he made at the time he entered the hotel room amounted to an admission that he came to the room to make or mix cocaine.

5.  The defence case was that the applicant went to the hotel room to collect some mobile telephones pursuant to the instruction of another person. He denied going there to deal with dangerous drugs, he denied having any knowledge of dangerous drugs being in the hotel room and denied making the admission attributed to him.

The prosecution evidence

6.  It was admitted that on 1 November 2016, at 1945 hours, Liu Jinzhan, PW1, was found by Customs Officers in possession of 1 kilogramme of a powder containing 852 grammes of cocaine in the vicinity of Un Chi House, Un Chau Estate in Cheung Sha Wan.  At the time of his arrest he told the officers that he had been offered a reward of HK$2,000 to carry the cocaine to Room 1200 of the Hotel Harbour Grand Kowloon located in Hung Hom.  PW1 agreed to assist Customs Officers by making a controlled delivery of the cocaine in the hotel room.  The street value of the cocaine seized was HK$1.103 million.

7.  Earlier that day, at 1855 hours, PW1 had checked into the hotel, renting the room for one day only and paying the room charge of $1,650 in cash.  When he did so he brought to the room a brown coloured paper bag containing a number of items which were capable of being used to mix dangerous drugs.  They included a cooking stove, plastic gloves, plastic bags, plastic bowls, a mixer and an electronic scale. 

8.  PW1 testified that he was told by his boss that someone would go to the hotel to look for him and would teach him to “do this sort of thing”,[1] without elaborating what that meant.  The prosecution case was that the person coming to the hotel room would show PW1 how to mix, weigh and package the cocaine and that this was an inference that could be drawn from the presence in the room of all the items that were relevant to such a task and from the statement made by the applicant to a Customs Officer at the time that he entered the hotel room. 

9.  PW1 and six Customs Officers entered the hotel room at 2110 hours on 1 November, and remained there, waiting for PW1 to be contacted. 

10.  The applicant was carrying a mobile telephone with the SIM card of telephone number 5548 6093.  The SIM card and the telephone number were registered in the applicant’s name.  It was not disputed that the applicant had twice called PW1 from this telephone before he came to the hotel room.  These calls were made at 0026 hours and 0033 hours on 2 November, and in the last call, PW1 had told him the number of the hotel room in which he was staying.  PW1 said he had never seen the applicant before this evening.

11.  On 2 November 2016, at around 0035 hours, the applicant rang the doorbell of the room, several minutes after the applicant’s last telephone call to PW1.  Other than Customs Officer Fung Lai Fai (PW2), all the other Customs Officers and PW1, concealed themselves in the toilet.  PW2 then opened the door and the applicant entered the room.  At that time, Customs Officer, Lo Pak Cheung (PW3) came out from the toilet.  PW2 and PW3 sandwiched the applicant and then revealed their identities.  When PW2 asked the applicant why he had come to the room, the applicant replied in Cantonese “to deal with coke”.  This reply was heard by both PW3 and PW4.  PW2 subsequently made a post record of the applicant’s admission but the applicant refused to sign against it. 

12.  The applicant was then arrested and cautioned, after which PW2 asked the applicant three questions.  They were: “Who asked you to come up?”, “Who are you looking for here?” and “Why do you come up here?” To each of these questions the applicant answered: “Don’t know”. 

13.  Three Customs Officers (PW2–PW4) gave evidence at trial.  The key prosecution witness was PW2 and his evidence was supported by PW3.  

The defence case

14.  The applicant testified that in September 2016 he had got to know a person by the name of Fei Chai Hung at a video games centre.  This person offered him a job of smuggling 20 brand new iPhones to the Mainland for a reward of $2,000.  But it was not until 2130 hours on 1 November 2016 that he was contacted by Fei Chai Hung telling him to go to the Harbour Grand Hotel at 0030 hours on 2 November to collect the 20 iPhones.  He was also given a contact telephone number to call when he was almost at the hotel.  His first call was to inform the person he was calling that he was almost at the hotel.  He called a second time when he had arrived at the hotel and in this call the person he was speaking to informed him of the room number and so he went to the hotel room. 

15.  He claimed that on entering the room he did not say anything in reply when PW2 asked him his purpose in going there.  He claimed that when he was arrested by the Customs Officers, he said nothing in reply.  After that he was cautioned, he then told the officers that he was there to get telephones.  He denied saying that he was there to get dangerous drugs.  He refused to sign the post record because he never said what it recorded.

The Perfected Grounds of Appeal

16.  The applicant relied on the following grounds of appeal:

(a)   the judge failed to direct the jury in accordance with the Court of Final Appeal’s judgment in HKSAR v Zhou Limei[2] in relying on the applicant’s verbal admission (Ground 1);

(b)   the judge erred in directing the jury on the actus reus of the offence by telling the jury that they need only find that the applicant went to the hotel room to deal with or in the dangerous drugs in question (Ground 2); and

(c)   the judge failed to summarise the evidence of PW3 in cross-examination and this led to an unbalanced and unfair summing-up as the cross-examination of PW3 was favourable to the applicant (Ground 3).

17.  In support of Ground 1, Mr Victor Lee, counsel for the applicant,argued that the applicant’s verbal admission is equivocal and ambiguous as, he contended: “Coke is a word of daily life.  There are many meanings based on the background of a person and his command of language.”  Because the applicant’s statement was equivocal and ambiguous, it required the directions laid down by the Court of Final Appeal in the Zhou Limei case. He also submitted that because the statement possessed these qualities, it was wrong and misleading to compare it with evidence of an eye-witness or the CCTV footage of a crime scene.

18.  Furthermore, because it was being relied on as an admission, Mr Lee submitted that the judge should have given directions in accordance with those suggested by the Specimen Directions at 39.1‑39.2.  In particular, the jury should have been directed that they must be satisfied that the admission is true before they can make use of it.

19.  In respect of Ground 2, Mr Lee submitted that the judge emphasized the importance of knowledge but failed to pay attention to the actus reus of the offence.  He argued that the applicant was never in possession of any dangerous drug and so had never committed the actus reus of the offence.  At most, he was planning to commit the act of trafficking but his actions never went beyond the planning stage because of the intervention of the Customs Officers.

20.  In respect of Ground 3, Mr Lee relied on a passage from the cross-examination of PW3 and submitted that the judge’s failure to highlight this part of the evidence resulted in an unbalanced and unfair summing-up.  In the passage relied on, PW3 explained how he emerged from the toilet of the hotel room to join his colleagues and of the dialogue he then heard.  He agreed that a number of questions were put to the applicant to which the applicant answered “I don’t know, I don’t know, I don’t know”.  It was then put to PW3 that: “Other than these answers, the accused did not make any statement to your colleague 1024 at all, did he?”  PW3 answered: “Apart from the questions afterwards, around the time when the three questions were put and the answers were given, nothing more he said.”

21.  It was submitted by Mr Lee that this part of PW3’s evidence supported the applicant’s denial that he made the admission attributed to him because it suggests that no other statement was made by the applicant other than his three responses of “I don’t know.”  The failure of the judge to mention this evidence in conjunction with the judge highlighting aspects of the cross-examination of the applicant resulted in an unbalanced summing-up.  Mr Lee relied on Ground 3 as providing additional support to Ground 1.

The respondent’s submissions

22.  In respect of Ground 1, Mr Bobby Cheung, for the respondent, submitted that the only issue in respect of the verbal admission was whether it had been said.  There was no allegation that the admission was obtained as a result of oppression or of any conduct by the Customs Officers which was likely to render the admission unreliable.  That being so, the judge had sufficiently followed 39.1-39.2 of the Specimen Directions by directing the jury that if they found (a) the applicant did not know about the drug and never made the admission; or (b) that the applicant’s version of going to collect telephones and not having any knowledge of the drug; was or may be true, then they should find the applicant not guilty. 

23.  Concerning the applicant’s submissions that the verbal admission was “equivocal and ambiguous”, Mr Cheung submitted that Zhou Limei had no application here as the applicant’s verbal admission was unequivocal in the context of when it was said.  He contended that it was never the applicant’s case that he went to the hotel room to deal with soft drink.  This was a reference to the alleged verbal admission by the applicant that he came to the room “to deal in coke”.

24.  Mr Cheung also maintained that there was nothing wrong in characterising the verbal admission as direct evidence for, as a matter of law, that is what it is.

25.  In respect of Ground 2, Mr Cheung agreed that the applicant was never in possession of the cocaine, but submitted that in the present case, although the full offence of trafficking was not made out, there was a formidable case against the applicant of attempting to traffic in the cocaine.  He invited the court to substitute for the trafficking conviction a conviction for attempting to traffic in a dangerous drug.  In support of such a course of action, he argued that the verdict showed that the jury accepted the prosecution case that the applicant went to the hotel room to deal with cocaine.  Consequently, had the jury been considering an offence of attempted trafficking they would have inevitably convicted the applicant of it.

26.  As to the sentence which should be imposed on the applicant for the attempted trafficking offence, he argued that the applicant’s culpability remained unchanged and so this court should sentence the applicant to the same period of imprisonment as was imposed by the judge. 

27.  In respect of Ground 3, Mr Cheung submitted that the evidence of PW3 was consistent with the evidence of PW2.  He pointed out that PW3 gave evidence about the verbal admission during examination-in-chief[3] and that he was not cross-examined on the topic.  He submitted that there was no contradiction, and no room for misunderstanding as PW3 referred to the “three questions” when confirming the answer of “I don’t know” but not the initial question.

Discussion

28.  This was a very simple case involving an ambush operation by officers of the Customs and Excise Department when they staged a controlled delivery from a Kowloon hotel room. 

29.  The prosecution case consisted of circumstantial evidence of the applicant contacting PW1 by telephone, of the applicant attending the hotel room and of the fact that the only purpose in PW1 renting the room was to traffic in dangerous drugs.  The prosecution case also consisted of direct evidence of the verbal admission by the applicant in response to the question from PW2 immediately before PW2 arrested him.

30.  The defence case was a denial of any knowledge of dangerous drugs in the hotel room and a denial of having made the inculpatory statement to PW2.  In conjunction with these denials, the applicant advanced an exculpatory explanation for why he went to the hotel room.    

31.  Thus the battle lines were drawn very clearly and the only issue at trial was a very narrow one; namely whether the applicant went to the hotel room with the intention of trafficking in a dangerous drug by dealing with it in some way.

32.  We point to the simplicity of the case and the starkness of the live issues in it in order to emphasize that jury directions are always contextual and only those that are needed to assist the jury to arrive at their verdict should be given.

33.  Ground 1 complains of the way the judge dealt with the evidence of the verbal admission.  This ground is predicated on the premise that the statement of the applicant is not clearly an admission.  It is said to be equivocal as to its meaning and is, therefore, one which required the judge to give directions to the jury in accordance with the Court of Final Appeal’s judgment in Zhou Limei. 

34.  As the applicant’s defence was that he did not make this statement there was no evidence before the jury of alternative possible meanings.  We repeatedly asked Mr Lee what alternative meanings this statement might have but he was unable to say what they might be. We are satisfied that in the factual context of this case the applicant’s use of the word “coke” was capable of bearing one meaning only and that is as a reference to cocaine.  Consequently, this complaint falls at the first hurdle because it cannot be shown to be an admission that is ambiguous or equivocal.   

35.  As to the complaint that the judge was wrong to characterize the admission as direct evidence, it is necessary to read the judge’s comment in context.  After posing the question: “What is direct evidence?”  She gave the following answer:

“… If there is reliable evidence from a witness who actually saw a defendant commit a crime, or if there is video-recording of the incident which plainly demonstrates his guilt, or there is reliable evidence of the defendant himself having admitted it, these would all be good examples of direct evidence against him. So prosecution says that in this case the direct evidence is the defendant’s admission to the Custom officer.”[4]

36.  It is clear from this statement that the judge was saying no more than that, as a matter of law, an inculpatory statement by a defendant is properly to be regarded as a piece of direct evidence and that is the way the prosecution was putting its case in respect of the statement it alleged the applicant made before his arrest.  The judge was doing no more than explaining the distinction between circumstantial and direct evidence and we are satisfied that what she said did not express any personal view of the weight to be attached to the applicant’s statement and would not have had the effect of influencing the jury in their own assessment of its probative value.

37.  In respect of the asserted failure of the judge to fully direct the jury in terms of Specimen Directions 39.1-39.2, we agree with Mr Cheung that in the context of this case such directions were not necessary.  As he pointed out, the only issue was whether the admission was made, not whether it was reliable.  No allegation was made of any circumstance that would give rise to there being a question mark over the reliability of the admission. 

38.  Once the jury accepted that the statement was made, they would have had to consider what was meant by it.  As we have already said when dealing with Ground 1, there was, in the factual context of this case, only one possible meaning that could reasonably be ascribed to the word “coke”.  Furthermore, the undisputed evidence before the jury established that PW1 rented a room for the purpose of taking the cocaine to it and awaiting the attendance at the room of a person who would teach him something. 

39.  It is against this backdrop that we pose the rhetorical question:

“What evidential basis was there for the jury to conclude that in making the statement he did, the applicant was not telling the truth.”

There was no evidential basis and to suggest that the applicant might not have been telling the truth is no more than fanciful speculation.  The reality is that the truth of what the applicant said was simply not a live issue in the trial.     

40.  The jury were given clear directions on the significance that the prosecution gave to the admission in proving its case; a significance which, we might add, was readily apparent from the obviously inculpatory character of the statement. The jury were also given clear directions on the denial by the applicant that he had made this statement. Finally, the jury were directed that it was for them to determine factual matters and to assess the credibility, reliability and accuracy of the witnesses and, the judge emphasized, that included the applicant as he had been a witness in the trial.  Those directions were sufficient for dealing with the issues that were live in this trial.

41.  We shall deal with Ground 3 next as it was relied on by Mr Lee as support for Ground 1.

42.  We commence by noting that the reality is that in this trial PW3 was not regarded as a particularly significant witness.  In his closing address to the jury the applicant’s trial counsel said of PW3:

“Then PW3, that’s another customs officer, 15120, his evidence does not deserve any careful study. Again, it doesn’t help the prosecution’s case. Under cross-examination, he has testified that he had been with Customs for two years. With this kind of seniority, we would label him as a junior customs officer, if I do not intend to classify him as an inexperienced customs (officer?).”[5]

43.  That was all that defence counsel had to say of PW3’s evidence.  It is hardly surprising that if the defence thought it unworthy of “careful study”, that the judge concluded likewise.  The reality is that PW3’s evidence was quite short and consistent with PW2, whose evidence he was clearly being called to support.

44.  PW3 did in fact confirm that the applicant made the admission to which PW2 had testified.  The following exchange took place in the course of his examination-in-chief:

“Q. Did he make any reply to the question from your colleague?

A. Yes, he answered that, ‘I’m coming up to deal with Coke.’

Q. After that, what happened next?

A. And then Customs Officer 1024 cautioned Chung Sai-wah.

Q. And after the caution did he then ask him three questions?

A. Yes. Yes, correct.”[6]

45.  The prosecutor did not then pursue how the applicant responded to the three questions and asked only four more questions before concluding his examination of the witness.

46.  Defence counsel then started his cross-examination and asked questions on the conversation that took place between PW2 and the applicant.  In order to put PW3’s evidence on this issue into proper context, it is necessary to quote it in some detail.  This is how his testimony unfolded[7]:

“Q. Once the door was opened, a Chinese male had entered the hotel room, right?

A. Yes.

Q. Could you see that?

A. Yes.

Q. Or would it all be imagination?

A. I deny.

Q. I gather, I suppose, at that point of time, you were inside the toilet, were you not?

A. Yes, I was inside the toilet but I left the toilet door ajar so I could see things outside.

Q. At that point of time, could you hear any dialogue taking place between CO1024 and that particular Chinese male, namely the accused?

A. No.

Q. Was there any dialogue between those two in that room?

A. At which stage are you talking about?

Q. At some stage while the accused was inside the hotel room.

COURT: I know but there are different stages. According to his evidence first they hid inside the toilet then there was a point that he came out of the toilet to join PW2 to prevent the defendant from fleeing.

MR WU: Yes.

COURT: Yes. So which point of time are you talking about, Mr Wu?

MR WU: My apology, my Lady.

Q. At some stage you came out of the toilet and joined in with your colleague 1024, right?

A. Yes, correct.

Q. And last the accused was stopped by you, or both of you, right, from leaving?

A. Correct.

Q. Was there any dialogue between those two CO1024 and the accused...

COURT: At that stage.

Q. At that stage, yes.

MR WU: I’m grateful, my Lady.

A. For the conversation between them, like I said, ‘We are Customs’.

Q. Who made this simple statement?

A. By CO1024.

Q. What else? Did he say anything to the accused?

A. Apart from this, I do not recall him saying anything else.

Q. Quite of number of questions were put to the accused by your colleague, 1024 inside that hotel room, right?

A. Yes, correct.

Q. The accused gave him this kind of answer, ‘I don’t know, I don’t know, I don’t know’, right?

A. Yes, for the three questions, yes.

Q. Other than these answers, the accused did not make any statement to your colleague 1024 at all, did he?

A.   Apart from the questions afterwards, around the time when the three questions were put and the answers were given, nothing more was said.”

47.  It is clear that PW3 was not in any way seeking to resile from what he had said in his examination-in-chief in respect of the applicant making the admission.  He was testifying to the point in time when the applicant answered “I don’t know” to the three questions and to the period of time after that.

48.  We find no merit in this ground of appeal.  It fails as a ground in its own right and as a supportive submission to Ground 1. 

49.  In respect of Ground 2, we agree that on the evidence adduced by the prosecution the substantive offence was not made out and the applicant should only have been charged with attempted trafficking.  Because it was a controlled delivery there was no possibility of the applicant being able to walk away with the goods and, given the way in which the officers turned their investigation overt, the offence committed by the applicant could only be an attempt.  It is disappointing and quite surprising that this was not recognized prior to this case coming before us.

50.  Thus, the only issue is whether we should accede to the respondent’s invitation and exercise our power under section 83A of the Criminal Procedure Ordinance, and substitute for the trafficking offence a conviction for attempted trafficking. 

51.  The offence of attempting to commit an offence is created by section 159G(1) of the Crimes Ordinance, Cap 200.  This section provides:

“159G Attempting to commit an offence

(1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.” (Emphasis added.)

52.  Section 159J(1)(b) sets out the penalty for an attempt to commit an indictable offence, other than an offence for which there is a mandatory penalty of life imprisonment.  For such offences, the convicted person is “liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.”  In short, the maximum penalty for an attempt to traffic in a dangerous drug is the same as the maximum penalty for trafficking in a dangerous drug; that is, life imprisonment.

53.  Mr Lee submitted that we should not do so as the question of whether the applicant’s actions had gone beyond the merely preparatory so as to amount to an attempt was a live issue which this court cannot now conclude would have been decided by the jury adversely to the applicant.  Underlying this submission was Mr Lee’s contention that, arguably, the applicant had not gone beyond the merely preparatory in his actions that evening.

54.  We are not persuaded by Mr Lee’s submission.  By its verdict, the jury must have been satisfied that the applicant knew there were drugs in the hotel room and he intended to go to the hotel room to deal with them in some way.  He knew he had to contact a person in the room and he did so, twice.  He travelled to the hotel, contacted PW1, enquired from PW1 the room number, went up to the room, knocked on the door and entered the room.  He did all of this with the intention to deal in some way with the drugs in the room.  He was only one step away from committing the substantive offence.  As a matter of law and as matter of fact there is no basis for concluding that the applicant had not gone beyond acts of mere preparation.  He had done more than enough to constitute an attempt, and we are in no doubt at all that had the jury been properly directed on the law of attempt they would have convicted him accordingly.

55.  That being so we decided the proper course for us was to exercise our power under section 83A of the Criminal Procedure Ordinance and substitute for the conviction for trafficking a conviction for attempted trafficking.  After hearing from the parties, we were of the view that the just course was to sentence the applicant to the same period of imprisonment as was imposed on him by the judge.

Conclusion

56.  For these reasons, we granted the application for leave to appeal in respect of Ground 2 only, quashed the conviction for trafficking in a dangerous drug and, exercising our powers under section 83A of the Criminal Procedure Ordinance, we substituted for it a conviction of attempted trafficking in a dangerous drug, contrary to section 159G of the Crimes Ordinance, Cap 200 and section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  For this offence, we sentenced the applicant to the same period of imprisonment as was imposed by the judge, namely 21 years’ imprisonment.