HKSAR v. MAK WING CHEUNG

CACC133/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 2007

(ON APPEAL FROM HCCC NO. 226 OF 2006)

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BETWEEN

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REASONS FOR JUDGMENT

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Saw J (giving the judgment of the Court) :

1.  On 29 March 2007 the applicant was convicted after trialbefore McMahon J and a jury of one count of conspiracy to traffick in a dangerous drug, contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134 and section 159A of the Crimes Ordinance, Cap. 200.  He was sentenced to be imprisoned for a period of 25 years.  

2.  He applied for leave to appeal both conviction and sentence.  On 23 July we dismissed both applications and said that we would hand down our reasons.  These are our reasons. 

3.  The trial was are-trial.  The applicant had previously been convicted of the same offence on 23 September 2003.  That conviction was quashed by the Court of Appeal on 21 November 2006 and a re-trial ordered. 

4.  There were six co-conspirators named in the indictment, they were Ho Ka Wing (“Ho”), Yim Kwok Kuen (“Yim”), Ling Kai Man (“Ling”), Wo Kwok Hung (“Wo”), Yau Shui Shek (“Yau”), Po Tai Ho (“Po”) as well as other persons unknown.  Ho, Ling, Wo, Yau and Po pleaded guilty to the conspiracy charge at the commencement of the 1^st  trial in September 2003.  Yim was acquitted at the conclusion of that trial.  In the present trial, both Wo and Yau were called as prosecution witnesses (“PW1” and “PW2”). 

5.  That there was a conspiracy to traffick in dangerous drugs in the period specified in the indictmentwas not a matter in issue in the trial. There was an abundance of evidence to establish that there was an agreement to arrange for two drug couriers to travel by air to Guam in early August 2002 to deliver substantial quantities of the drug methamphetamine hydrochloride (“Ice”).

6.  There was evidence that for some time prior to the arrest of the co-conspirators and this applicant, the police had been conducting surveillance upon them.  On 3 August 2002 thatsurveillance became overt and a number of persons were arrested in or in the vicinity of Room 808 of the Stanford Hotel in Tsim Sha Tsui.  When the police entered that room they found Po with 18 plastic bags containing the drug Ice taped to his body under his clothing.  He was found to be in possession of Wing On Travel Agency documents which related to his flying to Guam that evening as part of a tour group.  At about the same time the police observed PW2 leave that same room.  He was arrested in the vicinity of the lift lobby.  Likewise he was found, when searched, to have 11 packets of the drugIcetaped to his body under his clothing.  Like Po, he also carried documents relating to a Wing On Travel Agency tour which was departing that evening for Guam.  It was not in issue in the trial that had they not been arrested Po and PW2 would have left Hong Kong on the evening of 3 August 2002.  

7.  The total quantity of Ice contained in the 29 packetstaped to their respective bodies was 4.7 kilogrammes,a vast quantity by any account. 

8.  It was the prosecution’s case that the applicant was actively involved in the agreement between those specified in the indictment and others to arrange for Po and PW2 to take the 4.7 kilogrammes of Iceto Guam.  

9.  PW1gave evidence of a number of meetings at which the applicant was present leading up to 3 August.  It suffices to say that his evidence taken together with a raft of other circumstantial evidence was sufficient to establish that the applicant was an integral part of this illegal agreement. There was evidence of extensive telephone contact between the applicant Ling, Ho and Yim during the period 2 and 3 August 2002.  There was evidence that the applicant was involved in the purchase and delivery of clothing for the couriers on the evening and afternoon of 3 August.  There was evidence of the applicant being the driver of a van which was used in the earlier preparations. When PW2 was arrested the police found in his possession a piece of paper with the number 60750821 on it.  He told police and gave evidence in the trial that this was a telephone number and that he had been told that he was to ring that number when he got through customs on the evening of 3 August2002 with the Ice. 

10.  When the applicant was arrested a SIM card coded with the number 60750821 was found in his possession. 

The application

11.  There were two grounds of appeal advanced by Mr McGowan on the applicant’s behalf. 

12.  Ground 1 was as follows :

“The Learned Judge erred in allowing a member of the jury, once he disclosed his employment as an Investigator for the Ombudsman, to continue to hear the Applicant’s case.”

13.  The issue of the occupation of one of the members of the jury arose in the following way.  Subsequent to the arraignment of the applicant and theempanellingand swearing of the jury the judge was alerted by his clerk to the fact that the foreman of the jury had raised a query with him as to his eligibility to serve on the jury as he was employed as an investigator in the office of the Ombudsman.  This had been conveyed to the judge’s clerk on the evening of 20 March 2007 after the judge had, it appears, left the court for the day.  The following morning the judge took the matter up with counsel.  There were various exchangesbetween the applicant’s counsel, the prosecutor and the judge. The Jury Ordinance, Cap. 3 was obtained and examined.  

14.  The judge concluded, without demur from the applicant’s counsel, that section 5 of the Jury Ordinance did not exempt an investigator of the Ombudsman’s office from serving on a jury in Hong Kong. 

15.  The jury were called into court. 

16.  The judge canvassed with the juror the concerns he (the juror) had. The judge said this :

“COURT : So you’re worried—are you worried, firstly, about your status, your job status, being a status that prevents you being a juror as a matter of law, are you worried about that? For example, some people, such as police officer, clergymen, barristers and solicitors are not allowed to be jurors. Are you worried about that?

[JUROR] : Yes but I know that I am not from that list, my work is not on that list.”

17.  There was some further discussion andthe juror was asked this by the judge :

“COURT: … you’re happy that you do not have any bias or potential conflicts? You not suggesting that you …

[JUROR] : I’m most happy to serve, to continue serving as a juror, yes.”

Having heard this, the judge proposed to continue the trial with the juroras the foreman. In response to this indication Mr Sadhwani, who appeared for the applicant in the trial when asked if he wished to comment, said : “No. We can continue on.” Thus it can be seen that there was no objection taken by the applicant’s counsel to the juror continuing to serve on the jury.

18.  It is now suggested by Mr McGowan that it was incumbent upon the judge to disqualify the juror by reason of his employment as an investigator with the Ombudsman’s office. 

Discussion

19.  The first hurdle to Mr McGowan’ssubmission is section 5 of the Jury Ordinance, Cap. 3.  Section 5 under the heading “Exemption from Service” reads in part as follows :

“(1) The following persons shall be exempt from service as jurors—

(a) members of the Executive or Legislative Council;

…

(ab) justices of the peace;

(b) any public officer who is—

…”

Thereafter follows an extensive list of public officers exempted from jury service. It is clear that an investigator in the office of the Ombudsman is not included in that list. The balance of section 5 is not relevantto the determination of this ground of appeal.

20.  On the face of it, section 5(1)(b) is exhaustive.  It declares those specified shall be exempt from service as a juror.  The language employed by the draftsman is clear and unambiguous.  The exemptions are specific. 

21.  That being the case, it is difficult to see how the judge would have been entitled let alone required to exempt the juror from serving.  The only basis upon which the judge could have exempted the juror from serving would have been pursuant to section 28 of the Jury Ordinance, which provides as follows :

“1) On application and on cause being shown, the court may—

(a) exempt any person from serving as a juror on any trial or for any period;

…”

What is immediately apparent from the clear and unambiguous words of this provision is that the judge may exempt any person from serving as a juror on cause being shown. For him to exercise this power an application to that effect must be made. There was no such application in the instant case, nor could there have been, on the basis of the material that was then before the judge.

22.  As it was the applicant’s counsel was entirely satisfied that it was appropriate for the juror to continue, it is for that reason obviously that an application was not made to show or attempt to show cause why he should be exempted. 

23.  Mr McGowan seeks to persuade us by reference to the Law Reform Commission Consultation Papers on Jury Service dated 2 June 2010 that this juror should have been exempted.  In that document there are for the purposes of discussion, recommendations as to the categories of persons who should be exempted from jury service for the future.  Included in those recommendations are investigators appointed by the Securities and Futures Commission and the Ombudsman’s office.  This appears under the heading “Additional Categories” in the discussion paper at 5.144.  The paragraph preceding the recommendation reads :“one respondent suggested the investigators of the Securities and Futures Commission and of the Ombudsman’s office should be exempted from jury service.  We have given this due consideration and agreed that these investigators should be exempted on the ground of perceived bias.”  This is a recommendation by the Law Reform Commission.  It has no bearing in our opinion on the ground of appeal.  The law as at the date of the trial and today is that the juror was eligible for service and no application to show cause that he should not serve was made nor determined by the judge. 

24.  Section 25 of the Jury Ordinance permits a judge to dischargea juror.  The section reads insofar as relevant :

“(1) A court may at any time during the trial of any action, suit, information or indictment prior to the verdict discharge a juror—

(a) where, in the interests of justice, it appears to the court expedient to do so; or

(b) in the interests of the juror.

(2) …

(3) …

(4) …”

It suffices to say that the judge did not consider it necessary to discharge the juror nor was any attempt made to establish that the interests of justice demanded that the juror be discharged.

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

26.  Ground 2of the Perfected Grounds of Appeal reads as follows :

“The LJ having emphasized to the jury the importance of the SIM card found in the Applicant’s [possession] and the telephone number for the same found in PW2’s possession erred in failing to further direct them that this nevertheless remained circumstantial evidence on which they could draw an adverse inference if there was no reasonable innocent explanation.”

27.  When considering this ground of appeal it must be remembered that the evidence overwhelmingly established that a drug trafficking syndicate was, in the days prior to the arrest of PO and PW2, preparing for their departure to Guam with a large quantity of Ice.  It was the evidence of PW1 that it was the applicant who had provided him with a sample of dangerous drugs prior to 3 August.  PW1 described various meetings at which the applicant was present and their purpose.  All of which linked him to this conspiracy. 

28.  PW2 described how the piece of paper with the telephone number of the SIM card found in the applicant’s possession was relevant, namely that he was instructed to call this number once he had passed through Customs at the Hong Kong Airport. 

29.  This was by any account a critical link between the applicant and the conspiracy to traffick in Ice. 

30.  What the judge said of this evidence was as follows :

“… That document and the phone number on it, members of the jury, are an important part of the prosecution’s case. If you accept that this document was on Yau’s person when he was arrested, and if you accept Yau’s evidence, according to his evidence, that he wrote that down on instructions from the person who spoke to him on the telephone, then it is an important document because it is an admitted fact that a SIM card was found in the defendant’s possession that same night which was coded with that telephone number.”

31.  The judge had earlier referred to this evidence when he had directed the jury as to their proper approach to the drawing of inferences.  He said this :

“ On occasion during this trial, the prosecution has suggested you should draw certain inferences against the defendant. They say that, from the evidence they have presented, you should infer that the defendant was an organiser of the attempt to send drugs to Guam, taped to the bodies of Po and PW2. How do you approach this question of inferences? Some facts can be proved by direct evidence. For example, in this case, there is direct evidence that PW1 was handed a sample of dangerous drugs outside the 7-Eleven store in Jordan Road, by the defendant. That is direct evidence because PW1 was there and saw this and told you what was said and done. Of course, just because it is direct evidence does not mean you have to accept it. You can reject or accept evidence, whether it be direct or indirect.

But some facts can often only be established indirectly, when you are asked to draw inferences from other facts which you are satisfied have been proven. The prosecution hopes, in this case, to prove that the defendant was part of a plan to smuggle “Ice” to Guam by proving other facts which they say establish that the defendant was part of that plan or agreement to send those drugs to Guam.

They rely upon PW1’s evidence as to the various meetings he had with the defendant and the circumstances of those meetings, together with the defendant’s possession of a SIM card, at the time of his arrest, which was coded with a telephone number which matched the telephone number which PW2 said he had written on a piece of paper after having been instructed to ring that number when he got through Customs, and the other evidence over the defendant’s mobile telephone number being in contact with Ling, Yim and Ho during the course of the days of 2 to 3 August 2002. I should say the prosecution rely also upon the surveillance evidence which they say connects the defendant with the booking of the tickets to Guam and the provision of clothes to Room 808.

They rely upon all of that evidence to establish that the defendant was a party to this conspiracy. If you are satisfied as to these matters, then the prosecution say you can infer that the defendant was a party to the conspiracy to send drugs to Guam, taped to the bodies of Po and Yau.

The law is this. You may only draw an inference against the defendant if it is the only reasonable inference to draw from those other proven facts. So from a set of facts which have been proven to your satisfaction, there is a reasonable inference to draw against the defendant as well as one that you could draw in his favour, then you must not draw the inference against him. You can only draw an inference against the defendant if it is the only reasonable inference.”

32.  The jury had in this passage been specifically directed that for them to draw an inference adverse to the applicant from his possession of the SIM card on the night of his arrest (the same night that the couriers and other alleged conspirators had been arrested), it had to be the only reasonable inference to be drawn.  We considered that this direction was proper in the circumstances and that that nothing more was required. 

33.  As it was towards the conclusion of his summing up and shortly before the jury retired the judge said of the applicants counsel’s closing speech :

“He [Mr Sadwhani] says the supporting evidence the prosecution relay upon is also unreliable. So far as the SIM card is concerned, he says the SIM card was not in a phone.”

And a little later :

“Mr Sadwhani pointed out that the defendant and Ling were found together in the mahjong school when the defendant was arrested and that there was therefore, or had been, an opportunity for the SIM card ‘to have exchanged hands.”

34.  The judgeobserved :

“So take all that into account, but that is Mr Sadhwani’s position with the SIM card. It was not in a telephone, it was easily handed from one person to another and you cannot therefore place great weight open the SIM card being found in the defendant’s possession.”

35.  We were satisfied that the directions given were in the circumstances proper and sufficient.  It was unnecessary to give the direction in the manner suggested.  The jury would have been in no doubt as to the correct approach they should take to this aspect of the evidence. 

36.  This ground of appeal failed. 

37.  There was no merit in the grounds of appeal against conviction and we accordingly dismissed the application. 

38.  The applicant did not pursue the application for leave to appeal sentence and we dismissed it.