HKSAR v. LAW CHI HUNG

CACC341/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.341 OF 2004

(ON APPEAL FROM DCCC NO.426 OF 2004)

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REASONS  FOR  JUDGMENT

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Hon McMahon J (giving the judgment of the Court) :

1. On 2 December 2004 after the hearing of this application, we refused leave and said we would provide our reasons later.  We now do so.

2. The applicant was convicted after trial in the District Court before Deputy Judge Dufton of an offence of keeping a divan, contrary to section 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134, and an offence of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the same Ordinance.  He was charged jointly with a person who was D1 at trial.

3. In respect of the first offence, he was sentenced to two years’ imprisonment and in respect of the second offence, he was sentenced to five years’ imprisonment.  Six months of the sentence imposed in respect of the first offence were ordered to run consecutively to the sentence imposed in respect of the second offence, resulting in a totality of sentence of five years and six months’ imprisonment.

4. The applicant originally sought to appeal against both his convictions and sentences, but before us has abandoned his application for leave to appeal against sentence, and his application in that regard was accordingly dismissed.

5. The facts found by the Deputy Judge in convicting the applicant were that in the evening of 8 January 2004, a police team had premises in Reclamation Street, Mongkok under surveillance.  They saw D1 open a door of the premises from within so as to allow another man and a woman to enter.  The police then rushed forward to gain entry to the premises.  After a brief struggle with D1, they succeeded in entering the premises.  Inside they found a further 14 people, of whom one was the applicant.

6. Also inside the premises was found a large quantity of paraphernalia used for the measuring, packaging and consumption of heroin and “ice”.  Some of the items contained traces of heroin, and two plastic bags containing small amounts of heroin were found on a table in the premises.

7. On the person of D1 were found 41 packets of heroin and 3 packets of “ice”, together with a key to the rear door of the premises and a notebook with the applicant’s mobile phone number in it.

8. On the applicant’s person was found cash in the amount of $48,930, made up of 30 x $1,000 notes, 21 x $500 notes, 73 x $100 notes, 4 x $50 notes, 43 x $20 notes and smaller denominations in coins.  The applicant was also found to be in possession of a key which operated the front grille to the premises.

9. In a room of the premises was found another notebook.  It also contained the applicant’s mobile telephone number.

10. The applicant and D1 were arrested.  Under caution at the scene and subsequently when interviewed, the applicant remained silent.  He elected not to give evidence and called no witnesses at trial.  D1 pleaded guilty before trial.

11. The grounds of appeal relied upon by Mr Cheng Huan, SC, for the applicant are, firstly, that the Deputy Judge erred in accepting evidence of the applicant’s possession of the $48,930 cash found on him at the scene as relevant and probative.  Secondly, that the Deputy Judge erred in giving weight to the evidence of the applicant’s possession of a key to the front metal grille of the premises and finally, that there was insufficient evidence to establish the applicant’s guilt in respect of the two charged offences.

12. So far as the first ground of appeal is concerned, in R. v. Grant [1996] 1 Cr. App. R. 73, a case where the appellant was charged with an offence of possessing drugs with an intention to supply them to others and where the evidence was that he was found to have been in possession of £912.50 at the same time as he possessed the drugs, Taylor LJ said :

“…. In our judgment it is necessary, in the circumstances, for the judge to indicate that any explanation for the money which has been put forward by way of an innocent explanation by the accused would have to be rejected by the jury before they could regard the finding of the money as relevant to the offence.  Again the jury should be directed that if there was any possibility of the money being in the accused’s possession for reasons other than drug dealing, then the evidence would not be probative.  If, on the other hand, the jury were to come to the conclusion that the presence of the money indicated not merely past dealing, but an ongoing dealing in drugs, then finding the money, together with the drugs in question, would be a matter which the jury could take into account in considering whether the necessary intent had been proved.”

13. In R. v. Guney [1998] 2 Cr. App. R. 242, whilst cautioning against the admission of such evidence simply to prove the propensity of a defendant to traffic in dangerous drugs, the court went on to say that evidence of possession of cash by a defendant may be relevant not only to his intent to deal but also to his knowingly possessing the drugs.  Per Judge LJ :

“…. Ultimately the jury has to decide whether the particular charge has been proved, and for this purpose is entitled to consider all the relevant evidence.  In our judgment where possession with intent is charged, there are numerous sets of circumstances in which cash and lifestyle evidence may be relevant and admissible to the issue of possession itself, not least to the issue of knowledge as an ingredient of possession.”

14. In the present case, the Deputy Judge was aware that evidence of the applicant’s possession of the $48,930 had to be approached carefully.  He said this in his Reasons for Verdict :

“	41.	I am satisfied the possession of this sum of money is both relevant and probative to the issues to be determined, in particular whether the possession of money by D2 indicated that D2 was keeping a divan where dangerous drugs were sold and whether D2 was part of a joint enterprise to sell the drugs found on D1.
	42.	I direct myself that before taking this evidence into account I must be satisfied that there is no realistic possibility of the money being in D2’s possession other than that he was currently connected with the drugs as alleged in this case (see for example R v Grant [1996] 1 Cr. App R 73; R v Guney [1998] 2 Cr App R 242 and R v Malik [2000] 2 Cr App R 8).”

15. He then went on to conclude that the evidence of the applicant’s possession of that sum of money was evidence which was probative of the applicant’s involvement in both offences.

16. In our view, the Deputy Judge’s approach to this aspect of the evidence cannot be criticised.  He was aware of the principles of law involved and directed himself accordingly.  His conclusion was arrived at properly.

17. Mr Cheng suggested in the course of argument that the applicant’s possession of the $48,930 was irrelevant to either charge, as there was not sufficient nexus between the applicant’s possession of the money and D1’s possession of the 44 packets of drugs.  We disagree.  The applicant was found to be in physical possession of the money in a small flat to which he had a key, and in which there were also found all sorts of drug paraphernalia, as well as 14 other people, and where drug trafficking was plainly being conducted.

18. This was an entirely different situation to that in HKSAR v. Chan Chung Leung [1999] 1 HKC 112, where, at the time of the alleged drug offences, there was evidence the applicant contemporaneously possessed a sum of about $8 million in a bank account.  In that case, there was no sufficiently proven nexus between the money and the alleged drug trafficking.

19. In the present case, the physical possession of the money by the applicant at the scene of the alleged offences was plainly relevant and admissible.

20. The second complaint of Mr Cheng is that the Deputy Judge did not properly consider all of the facts surrounding the applicant’s possession of a key to the premises at the time of his arrest.  The applicant had not challenged his possession of that key, but had suggested in cross-examination that his presence in the premises was to build a brick wall which was under construction there, and that he possessed a key to the premises for that purpose.  The Deputy Judge rejected the possibility that the applicant was a bricklayer, and accepted the evidence of the police witnesses that no construction work was underway when they entered the premises.

21. In regard to the applicant’s possession of the key, the Deputy Judge said in his Reasons for Verdict :

“	35.	In D2’s possession was a bunch of seven keys one of which was found to open and lock the iron gate of the main entrance to the premises.  This evidence was not challenged.
	36.	The premises were not the residence of the defendant.  The defendant’s reported address was Room 1, 5th Floor, Shing Tak Mansion, Peace Avenue, Kowloon (see paragraph 3 of the admitted facts, exhibit P15).  The defendant admitted living at this address with his girlfriend ….
	38.	… I find inherently improbable that someone unconnected with the keeping of the divan would be entrusted with a key to the premises to build the wall while drugs were being sold and consumed in the premises.”

22. In our judgment, the Deputy Judge’s reasoning in this regard was sound.

23. Mr Cheng further relied upon an argument that as the key operated only the front metal grille to the premises and not the front wooden door immediately behind it, the applicant’s possession of the key was of little weight evidentially as he could not have gained entrance to the premises with it.

24. That argument overlooks other evidence before the Deputy Judge that the wooden door had only one lock which required a key and its mechanism had been obstructed so that it did not operate.  No key was required to open that door.  It was only securable by a small internal latch by someone already inside the premises.

25. The final ground relied upon by Mr Cheng was that even if the applicant’s possession of the cash and the key to the premises was relevant and admissible evidence, there was, in any event, still insufficient evidence to safely convict the applicant of either charged offence.

26. It is true that the case against the applicant on both charges was based on circumstantial evidence.  But that evidence was strong.  He was found in the midst of what was quite plainly an operating drug divan.  He had a large amount of cash in his possession and he had a key to the front gate of the premises.  His mobile phone number was in the notebook found on the person of D1 who was in possession of the 44 packets of dangerous drugs and in another notebook found in the premises.  D1 had possession of a key to the rear door of the premises.  Against this evidential background the applicant elected not to give evidence.

27. From that evidence, in our view, it was open to the Deputy Judge to conclude D1 and the applicant jointly kept the divan.  Once that conclusion was reached it was a short step, also open on the evidence, to find that the applicant was jointly trafficking in the drugs found on the person of D1.

28. In our judgment, there was sufficient evidence for the Deputy Judge to arrive at the findings of fact which he did and to convict the applicant.

29. For these reasons, the application for leave to appeal against conviction is dismissed.