HKSAR v. FUNG CHI, MARCO

CACC 11/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 11 OF 2015

(ON APPEAL FROM HCCC NO. 76 OF 2014)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant, who was unrepresented, sought leave to appeal against his conviction on 16 December 2014, after a trial before Deputy High Court Judge S. T. Poon and a jury, of a count of trafficking unlawfully on 13 August 2013 in 33.55 kilogrammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The applicant was sentenced to 32 years’ imprisonment. On 15 March 2016, his application for leave to appeal against sentence out of time was dismissed, pursuant to rule 39 of the Criminal Appeal Rules, Cap. 221, on the applicant filing a Notice of Abandonment. At the hearing, we refused the application for leave to appeal against conviction and said that we would give our reasons for so doing in due course. That, we do now.

2.  The applicant’s application for the grant of legal aid to assist him in his application for leave to appeal against conviction was refused on 31 March 2015, as was his renewed application on 19 May 2015.  Similarly, on 29 September 2015 the Hong Kong Bar Association’s Free Legal Service Scheme refused the applicant’s application for its assistance in respect of his applications for leave to appeal against conviction and against sentence out of time.  On 27 May 2015, Cheung CJHC adjourned the case for three months to enable the applicant to seek private legal representation.  On 16 November 2015, Cheung CJHC directed that the case be set down for hearing, “not before 14 March 2016”.

The Trial

The prosecution case

3.  There was no dispute that at about 1 p.m. on 13 August 2013  the applicant was intercepted by Customs officers at the Hong Kong International Airport, following his arrival from his original port of embarkation of São Paulo, Brazil, as he walked through the ‘Green channel’ at the Customs area with two suitcases.  An inspection of each suitcase revealed the presence of 24 blocks of cocaine in each suitcase, wrapped in a quilt.  It was an admitted fact that the retail value of the cocaine was about $46.7 million.

4.  Customs officer Chan Kit Hing testified that she had seen the applicant pull off the luggage tags on each of the suitcases and throw them into a rubbish bin.  The prosecution suggested that the inference to be drawn was that the applicant was preventing anyone finding out from where the suitcases had come.

5.  In a video record of interview, the applicant accepted that he brought the two suitcases from São Paulo in Brazil and asserted that he had done so at the request of his friend, Lin Chi Man, who had arranged and paid for his airline tickets, albeit that he had paid for his own accommodation in São Paulo.  He travelled by air on Air China from Hong Kong, via Beijing and Madrid, to São Paulo, taking with him an empty suitcase and a travelling bag.  He intended using the former to transport some goods back to Hong Kong, as requested by Lin Chi Man.  He had not been told the nature of those goods.  In São Paulo, he had been met, by an arrangement made by Lin Chi Man by telephone, by a taxi and taken to collect the goods.  Having been told that his suitcase was too small, he was provided with two other suitcases, to which he was given the keys.  He left his own suitcase behind.  At the airport in São Paulo he opened the suitcase and, having inserted his hand inside, felt what seemed to be a bed sheet.  He made no further enquiry.  Then he returned to Hong Kong on Air China via Madrid and Beijing.  Having arrived in Hong Kong, he intended taking the suitcases to meet Lin Chi Man in Yau Ma Tei.  He had made three similar journeys to São Paulo at the behest of Lin Chi Man.  The latter had arranged and paid for his airline tickets on those occasions as well.  However, on previous occasions he had not brought anything back to Hong Kong from São Paulo for Lin Chi Man.

6.  In addition, the prosecution relied on the fact that the retail value of the cocaine was over HK$46 million, and invited the jury to infer that no one would entrust anyone with something of this value without telling the person what was contained in the suitcase.

The defence case

7.  The applicant testified that he did not know there were dangerous drugs in the two suitcases.  He travelled to São Paulo to take some leather goods back to Hong Kong for Lin Chi Man, who was his homosexual lover. 

8.  The applicant said he had taken leather goods, including branded handbags, wallets and reconditioned leather jackets from Hong Kong to São Paulo on the three previous occasions that he travelled there.  On each occasion he had travelled with one suitcase.  On the third occasion he had fallen sick and had been unable to return to Hong Kong with leather goods as had been intended.  In light of that failure, he volunteered to go on the fourth trip to take the leather goods to Hong Kong for Lin Chi Man.

9.  The applicant said that on the three previous occasions when he had taken leather goods to São Paulo they had been wrapped in quilts inside the suitcase.  On each of those occasions, he delivered the leather goods to the same person at the same hotel, at which he had stayed on his fourth visit to São Paulo.  Lin Chi Man did not tell him and he did not know the name of that person or that of the hotel.

Summing-up

10.  In his summing up the judge directed the jury as to the ingredients of the offence of unlawful trafficking in dangerous drugs:[1]

“  the defendant is charged with trafficking in dangerous drugs.  The term “trafficking” is defined in law.  It includes importing dangerous drugs into or exporting dangerous drugs from Hong Kong, dealing with and dealing in dangerous drugs, procuring and supplying dangerous drugs.  But in this trial we are concerned with importing dangerous drugs to Hong Kong.

You may not convict the defendant unless you are sure the prosecution have proven the following: first, the defendant was in possession of the dangerous drugs; second, he knew they were dangerous drugs; and third, he possessed them for the purpose of importing the dangerous drugs or any part thereof.”

11.  Of the ingredient of possession, the judge said:[2]

“ In this trial, you are not concerned with who is the owner of the cocaine. The question is whether the defendant was in possession of the cocaine and what was the purpose of his possession. You do not have to be the owner to be in possession of something in law. A person is in possession of an object if it is in his actual physical custody, for example, in his hand or in his pocket or is otherwise within his control, for example, kept in his desk or his bedroom, and he knows it is there and has the intention to exercise control over it.

In this case, the defendant carried with him the two suitcases and had the keys to the padlocks to them.  You will have little difficulty in finding that the defendant had physical custody or control of the two suitcases and the contents therein.  If you are sure that the defendant had control of the suitcases and knew that there were dangerous drugs inside, then he is in possession of the dangerous drugs in the suitcases.”

12.  Of the defence case, the judge said:[3]

“ In this trial, the defendant says that he did not know that the cocaine was in the suitcases, and I repeat, it is for the prosecution to prove that the defendant knew. It is not for the defendant to prove that he did not know. If you find what the defendant said in the trial or in the video interview, that he did not know, is true, or may be true, you must acquit him.”

13.  Having reviewed the account that the defendant had given in the video recorded interview and in his evidence in the trial, on both of which occasions he had maintained that he did not know that there were dangerous drugs contained in the suitcases he took through the ‘Green channel’ of the Customs area of Hong Kong International Airport, the judge summarised the defence case:[4]

“ You have heard all that the defendant said in the video-recorded interview and in the witness-box. The defendant said Lin was his lover and he trusted Lin. The fact that he was in a homosexual relationship does not in itself make the existence of the relationship less probable. The defendant said it was Lin who asked him to collect the goods, which he thought was leather goods from Sao Paulo. Because of their relationship, he never doubted him. He trusted Lin so much that he did not ask him much about his trips to Sao Paulo, not even the purpose of bringing leather goods there. Although once he was curious about what was inside the two suitcases, he did not, in the end, check what it was, after touching something like bed sheet in it. He said he was only curious about the style of the handbags.”

14.  Then, the judge identified the crucial issue in the case for the jury to resolve:[5]

“ Members of the jury, the main issue in the present case is whether the defendant had possession of the dangerous drugs in question. As I have directed you earlier, in order to establish possession, the prosecution must prove that the defendant had control of the suitcase and had knowledge that a dangerous drug was in the suitcase. It is not necessary for the prosecution to prove that the defendant knew the dangerous drug was cocaine.

If you accept that the defendant’s evidence is true, or may be true, then you must acquit him for he was not in possession of the dangerous drug.”

Grounds of appeal against conviction

15.  In Form XI, by which he gave notice of his application for leave to appeal against conviction, the applicant asserted simply that the conviction was, “not fair”.  Although, on 16 November 2015, he had been directed by Cheung CJHC to file submissions in support of his application 28 days before today’s hearing, of which he was given notice by letter from the Court dated 5 January 2016, the applicant had not filed any such submissions or additional grounds of appeal prior to today’s hearing.

16.  Today, in oral submissions he advanced four new grounds of appeal.  First, he submitted that the judge had failed to direct the jury, in accordance with the Specimen Directions, that he was of good character.  Secondly, he complained that the judge had given the jury insufficient directions that, if they believed his evidence or thought it might be true, they should find him not guilty.  Thirdly, he said that the prosecution did not have direct evidence to prove that he knew that the suitcases contained dangerous drugs.  Whilst he accepted that dangerous drugs had been found in the suitcases, he said that the issue was of his knowledge of that at the time of his arrest.  The judge did not draw the attention of the jury to the fact that there was no evidence that his fingerprints had been found on the packaging around the dangerous drugs.  Further, he submitted that the judge had failed to draw to their attention the inconsistencies in the evidence of the Customs officers in respect of the circumstances that led to their attempting, by impersonating the applicant, to meet and arrest Lin Chi Man.  Fourthly, he complained that his counsel had not done his best in cross-examination to establish the discrepancies in the evidence of the prosecution witnesses in respect of that issue.

Good character

17.  The applicant said that he accepted that, although he had given evidence, he had not testified as to his character and agreed that the matter was not adduced in evidence in the trial.  Further, he accepted that he had been convicted of theft in 1996, for which he had been fined $500.  There is no dispute that the judge gave no direction in respect of the applicant’s character.

18.  Having noted from the ‘log’ of the judge’s clerk in the lower court that, at the close of the prosecution case and before the applicant began his testimony, reference was made to a discussion between the judge and counsel, in the absence of the jury, of the issue of the criminal record of the applicant, we asked that the audio recording of that interchange be played in this Court.  In the course of that interchange, it is clear that Mr Boyton, for the applicant, tried to obtain a determination from the judge that he would give a ‘Berrada’ [6] good character direction in favour of the appellant.  He had provided the judge with a copy of the judgment of the Court of Final Appeal in Tang Siu Man (No 2) v HKSAR.[7]  At one stage, Mr Boyton suggested that the matter be dealt with by admitted facts, pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221.  The apparent difficulty lay in the fact that the applicant had a previous criminal conviction.  For his part, Mr Laskey, for the prosecution, suggested that if the defendant was led into giving an answer favourable to the defence to the question, “Apart from a minor matter for which you were fined $500 many years ago, have you never been in trouble with the police”, he would not cross-examine on the issue.

19.  Having been permitted to take a short adjournment to take instructions from his lay client, without the court rising, Mr Boyton told the judge that he would deal with the matter “that way”, enquiring, “…but do I still get the Berrada direction?”  The judge said that the issue of whether or not to give a Berrada direction, “one limb or two limbs” was one of judicial discretion and would be subject to whether or not the applicant gave evidence and how he was cross-examined.  Of that, he said, “It all depends.  I can’t say whether it is Berrada in the strict sense or not.”  In response, Mr Boyton said, “In that case, it’s not worth the risk.”  Thereafter, the matter was not pursued.

20.  It is not entirely clear what “risk” Mr Boyton had in mind.  Presumably, he was concerned that the jury, having learned from the evidence of the applicant that he had a previous conviction for a minor matter for which he had been fined $5`00, the applicant would not receive the benefit of a good character direction.  Although Mr Boyton had failed to secure an undertaking from the judge of how he would direct the jury in light of the prospective evidence, the presumed risk described earlier was to be viewed in the context of the applicant’s criminal record.  At the time of the commission of the offence, the applicant was 19 years of age and, having regard to the minor penalty, the offence, albeit one of dishonesty, was clearly not serious.

21.  Whatever may be the relative merits or otherwise of the calculation of risk made by Mr Boyton, it is clear that it was a considered tactical decision taken on behalf of his client not to lead the evidence.

22.  In his judgment in the Court of Final Appeal in Chong Ching Yuen v HKSAR[8], with which all the other judges agreed, Sir Thomas Eichelbaum NPJ addressed the issue of the authority of counsel in regard to the conduct of a trial and cited with approval the judgment of Gleeson CJ, as Gleeson NPJ was then, in R v Birks,[9] a decision of the Court of Appeal of New South Wales:[10]

“ In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted.  Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics.  The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.  [Italics added.]

23.  We are satisfied that Mr Boyton’s decision lay well within the discretion of counsel, with binding consequences for the appellant.  There was no question whatsoever that it was to be regarded as falling in the “exceptional instances”, in which it was to be regarded “as an error of sufficient proportion and consequence” to require the court to intervene to “avert a miscarriage of justice.” [11]  Indeed, it is a moot point as to whether or not it was even an error.

The judge’s direction in respect of the applicant’s out-of-court statements and his evidence

24.  Contrary to the appellant’s submission, the judge did direct the jury in respect of their approach to the applicant’s out-of-court statements and his evidence.  Moreover, he did so twice.  First, he said:[12]

“ In this trial, the defendant says that he did not know that the cocaine was in the suitcases, and I repeat, it is for the prosecution to prove that the defendant knew. It is not for the defendant to prove that he did not know. If you find what the defendant said in the trial or in the video interview, that he did not know, is true, or may be true, you must acquit him.” [Italics added.]

Secondly, towards the end of his summing up, he repeated the direction:[13]

“ If you accept that the defendant’s evidence is true, or may be true, then you must acquit him for he was not in possession of the dangerous drug.” [Italics added.]

25.  There is no merit in this ground of appeal.

The judge’s directions in respect of the evidence of the applicant’s knowledge of the presence of the dangerous drugs

26.  The applicant is correct that the judge did not specifically draw the attention of the jury to the evidence that his fingerprints were not found on the packaging around the dangerous drugs.  The absence of fingerprints is a neutral factor[14].  Nevertheless, the judge did draw the attention of the jury to the admitted facts.  There, it was admitted that although four fingerprints had been discerned on the packaging around the dangerous drugs with sufficient ridge characteristics to make for identification, “…none of them were found to be those of the defendant”.[15]  In respect of the admitted facts, the judge directed the jury:[16]

“ You must accept those facts as proven. They are binding upon you in that regard. You should not attempt to go behind them or contradict them. That is because counsel have agreed those facts and based on them to conduct this trial. It would be wrong for you not to accept that.”

27.  There being no transcript of the closing speeches of counsel, it is not known whether or not counsel for the applicant reminded the jury of the fact that such fingerprints that had been discerned on the packaging around the dangerous drugs were not of fingerprints that matched those of the appellant.  However, the judge did remind the jury to have regard to the speeches of counsel, directing them that, “you may choose to agree or disagree.” [17]

28.  Of the applicant’s complaint, that the judge had not directed the jury sufficiently of the evidence of the lack of effort of the Customs officers involved in the arrest of the applicant to locate and arrest Lin Chi Man, it is to be noted that the judge did remind the jury that Inspector Hui testified that he had impersonated the applicant and attempted to make a controlled delivery to Lin Chi Man, “taking the suitcases onto the A21 bus and got down at Prince Edward.” [18]  Also, the judge said:[19]

“ Members of the jury, what the defendant is suggesting, through Mr Boyton, in this line of questions is that the Customs officers did not put in sufficient effort to locate Lin and, because of that, as you should remember the evidence of the defendant, he did not tell all the truth to the Customs officers in the interview, in particular the fact that he helped Lin to transport leather goods to Sao Paulo because he did not find the Customs officers provided sufficient assistance to him to locate Lin Chi-man. This is apparently the relevance of why the defence put this line of questions to the Customs officers.

Again, it is up to you to assess all the evidence and form your views as to whether the Customs officers had put in sufficient effort to locate Lin, and perhaps to consider also whether the officers had behaved in such a way that caused the defendant to have such an impression.”

Counsel’s failure to cross-examine the Customs officers to establish that they were lying in their evidence.

29.  Of the appellant’s complaint that Mr Boyton had failed to cross-examine the Customs officers to establish that they were lying in their evidence, it is to be noted that the complaint has not been raised before in the 2½ years since the applicant’s conviction.  Further, the applicant accepted in this Court that he had not raised that issue with the judge in his trial.  On the other hand, it is clear that Mr Boyton did invite the jury to conclude that senior Customs officer Tsang had lied in his evidence.  Of that suggestion, the judge said:[20]

“ In cross-examination, counsel queried why he did not use the standard form to do the post-record statement. Initially, he said he was not aware of such form but, later on, he said he did not use the form as he was instructed by his superior to use another form. He was asked whether there were telephone calls made to the defendant during the time when he was examining the suitcases. He said he did not notice. Mr Boyton, counsel for the defendant, asked you to conclude that this witness lied. You have heard the witness giving evidence and you can make your own judgment whether he was lying. You should also consider how and whether this part of his evidence relates to the issues in this trial.”

There is no merit in this ground of appeal.

Conclusion

30.  We are satisfied that there is no merit in the grounds of appeal advanced orally by the applicant to this Court today.  Furthermore, having had the advantage of a transcript of the applicant’s evidence at trial, together with a transcript of his video-recorded interview, we are satisfied that the judge’s summing up on both the relevant issues of law and fact was entirely appropriate.  In the result, we refused the application leave to appeal against conviction.