HKSAR v. CHAN TAK WAI

CACC 292/2017

[2019] HKCA 153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 292 OF 2017

(ON APPEAL FROM HCCC NO 216 OF 2016)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The applicant faced a single count in the High Court of trafficking in a dangerous drug, namely, 490 grammes of a solid containing 316 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He pleaded not guilty to the offence. On 4 September 2017, following a trial before Deputy Judge Bruce, SC (“the judge”) and a jury, the applicant was convicted and, on the same day, sentenced to 9 years’ imprisonment.

2.  On 29 January 2019, the applicant applied for leave to appeal against conviction only.  On the same day, we gave our judgment refusing leave and dismissing the appeal, and said that we would hand down the reasons for our judgment in due course.  These are our reasons.

The prosecution case

3.  On 11 November 2015, at about 8:20 pm, DPC 8235 and WPC 8572, who were on an anti-dangerous drugs patrol, noticed the applicant walking quickly towards a nearby taxi stopped outside the wet market in Tin Yiu Estate, Tin Shui Wai, New Territories.  At that time, the flag indicated that the taxi was already engaged and waiting.  The police officers testified that they saw the applicant, who was carrying a brownish bag in his right hand, get into the taxi, which then pulled away and proceeded to the barrier gate of the Estate.  The two police officers immediately went over to intercept the taxi.

4.  DPC 8235 opened the nearside passenger door and saw the applicant sitting at the rear passenger seat, with a bag in his hand resembling the brownish bag he had earlier been seen carrying.  DPC 8235 revealed his police identity and the applicant released his grip on the bag. The applicant was then arrested but remained silent under caution.  The sum of HK$300 was paid over by DPC 8235 with the applicant’s consent to the taxi driver in order to settle the taxi fare.  Upon arrest, the police officers had found in the applicant’s wallet HK$10,670 and a further HK$26,600 in cash in his front trouser pocket.  The applicant was also in possession of two mobile telephones.

5.  In evidence, the taxi driver testified that he had picked up the applicant near Kam Tai Court in Ma On Shan, New Territories at about 7 pm that day.  As instructed by the applicant, he drove first to Heng On Estate, where he waited while the applicant alighted before returning a few minutes later.  The applicant then instructed him to return to Kam Tai Court so that he could go upstairs to get something.  On arriving at Kam Tai Court, he waited for about 10 minutes.  When the applicant returned, he was instructed to go to Tin Shui Wai.  At the wet market, the applicant alighted from the taxi before returning a few minutes later.

6.  The taxi driver said he did not pay attention to whether the applicant was carrying anything or not.  However, once the police officers stopped his taxi, he turned around and saw the brownish bag (Exh P4) on the rear passenger seat.  He denied in cross-examination that the applicant had pointed out that a bag had been left on the seat of the taxi.

7.  At the trial, Closed Circuit Television (“CCTV”) footage of Kam Tai House, Kam Tai Court in Ma On Shan was shown to the jury. The footage captured the applicant walking into Kam Tai House at about 7:26 pm on the material day, and then walking out of the building 10 minutes later at about 7:36 pm, with a plastic bag similar in pattern and style to Exh P4 in his hand.  Three fingerprint impressions were found from the outer covering of Exh P4, one of which was admitted to belong to the applicant.  The contents of Exh P4 were later confirmed to be ketamine in the quantity particularised in the Indictment, with a retail value of HK$61,250.

8.  The prosecution alleged that the applicant was trafficking in the ketamine in question, by having continuous possession of Exh P4 from Kam Tai House, as captured by CCTV, until his interception by police officers near the wet market in Tin Yiu Estate.

The defence case

9.  The applicant elected to testify at trial.  His case was that he had no knowledge of Exh P4 until he saw it under the car seat when he was on board the taxi, at which time he drew it to the driver’s attention.

10.  The applicant said that at about 6:48 pm on the day in question, he discovered that he had lost the keys to his home.  Since he had already arranged a taxi to drive him to Tin Shui Wai to collect a debt from someone called “Ah Shing”, he took advantage of the taxi to drive him to Heng On Estate, where he obtained a duplicate key from his in‑laws.  He then instructed the taxi driver to drive back to his home in Kam Tai Court to get some proper shoes and his wallet.  It was at that time, a friend of his, known as “Ah Mai”, called him to request some video game discs.  Accordingly, when he arrived home, he picked up his wallet and some discs and put them in a bag, which happened to be of roughly the same colour and design as Exh P4.  However, he said that he passed the bag with the game discs to “Ah Mai” as he came out of Kam Tai House, and was not, therefore, carrying any bag when he subsequently boarded the taxi.  He was then driven to the wet market where he collected the debt of HK$37,000 from “Ah Shing”.

11.  Upon his interception, the applicant said he explained to police officers that Exh P4 was already in the taxi when he boarded.  He claimed that police officers asked him to pick up and pass Exh P4 to them, which explained the presence of his fingerprint on the bag.

12.  The defence suggested that the police witnesses were not credible; in particular, because when DPC 8235 took out a HK$1,000 banknote to pay HK$300 for the taxi fare, he was unable to account for the HK$700 change.  The taxi driver said he received a HK$1,000 banknote and returned HK$700 in change, yet the officer denied having received such change. Accordingly, this contradiction of the police evidence rendered their testimony unbelievable and unreliable.

The summing‑up

13.  The judge, having briefly outlined the respective cases of the prosecution and defence, identified for the jury the crucial issue to be determined[1]:

“The accused must be proved to have possessed them for the purpose of unlawful trafficking. Therefore, you may not convict the accused unless you are satisfied beyond reasonable doubt that the prosecution has proven that on 11 November 2015 that (1) the accused possessed the dangerous drugs; (2) that he knew what he possessed was dangerous drugs; and (3) that the purpose for which he possessed those dangerous drugs was unlawful trafficking.”

14.  The judge made it clear to the jury that if what the applicant asserted in respect of his knowledge of Exh P4 and its contents was or might be true, then he must be acquitted[2]:

“…I said at the beginning of my directions that he does not have to prove anything. You must give some credit for the accused for going into the witness‑box, telling his story and subjecting himself to cross-examination. In some respects, you treat the accused as a witness in the same way that you would treat any other witness. However, a critical difference is that the burden and standard of proof mean that if you think that what the accused said was true or might be true, then your evaluation of the accused would, if that related to his knowledge of the bag and its contents and whether he was carrying P4 walking out of his residence, if you thought what he said might be true, he is entitled to an acquittal.”

15.  The judge later repeated this instruction[3]:

“The accused has to prove nothing. However, if you thought what he testified to was true or might be true, particularly as far as the events in the taxi, then he is entitled to an acquittal.”

16.  As to whether the applicant was holding the same brownish bag when he was walking out of the building where he lived, the judge directed the jury that it was a matter for them to determine[4]:

“What matters is not what the officer thinks, it is what you think, what you decide, applying the burden and standard of proof to which I have referred ... It is a matter for you to determine whether the bag seized and the bag carried are one and the same. Looking ahead to your analysis of the case, if you consider that the bag carried and the bag seized were one and the same, then you could infer that the accused was in continuous possession of the bag since he left the 36^th floor of Kam Tin House until the time he was arrested in the taxi at 8:20 pm. If that were your finding, then that could have a significant impact on your analysis of whether the accused was telling you the truth when he said that the bag containing the drugs was simply lying on the floor of the taxi and that he is simply a victim of circumstance. If you did infer that the accused was in continuous possession of the bag from the 36^th floor of Kam Tin House to the time he was intercepted in the taxi, that also might provide a measure of support for the testimony of the police officers at the scene, and, in particular, DPC 8235 and his female colleague.”

17.  The judge then comprehensively detailed the salient features of the respective prosecution and defence case, as well as repeated several of the points made by counsel in their closing addresses.

Grounds of appeal

18.  By letter dated 2 January 2019, the applicant has raised four grounds of appeal, which are as follows:

(i)     The police officers collected evidence unlawfully.  By accepting the testimony of the officers and the exhibits he handled and produced in court, the judge failed to observe the principles of a fair trial and proof beyond reasonable doubt (Ground 1);

(ii)     The prosecution failed to prove to the required standard the applicant’s knowledge of the dangerous drug contained inside Exh P4 (Ground 2);

(iii)    The judge did not properly analyse for the jury the issue of the missing HK$700, which thereby rendered the applicant’s trial unfair (Ground 3); and

(iv)    The judge did not analyse and explain to the jury where on Exh P4 that the applicant’s fingerprint was found (Ground 4).

The respondent’s submissions

19.  In response to Grounds 1 and 3, Mr Bobby Cheung, on behalf of the respondent, submitted that the issue of the HK$700 had been sufficiently and fairly dealt with by the judge in his summing‑up.  He had recited the versions of DPC 8235, the applicant and the taxi driver in this regard.  In particular, it was pointed out to the jury that[5]:

“…The taxi driver not only said it was a $1,000 bill, but that at some stage he photographed it with his smartphone later on. Well, we never saw the photograph and it was never explored with the taxi driver quite why he did that.

However, it is the fourth topic which you may wish to consider a little more carefully.  Both the taxi driver and the accused say that $700 in change was given by the taxi driver to the police officer who had paid over the $1,000 bill.  The accused never saw that money again, so he says.  Of course, you will recall the officers, in particular 8235 and 8572, say that just did not happen.  This is an issue you will have to think about because, as Ms Wong, counsel for the accused, argues, potentially it has a significant impact on the credibility of the officers concerned.  The reason this is important, so she argues, is because before you can conclude that the prosecution case was proved, you would have to rely on the honesty and trustworthiness of the officers concerned.  Ms Wong says this is destructive of their honesty and trustworthiness.”

20.  The respondent argued that the judge correctly left the matter of the HK$700 to the jury to determine whether the issue “diminished” the officers’ credibility and, if it did, whether and to what extent the jury could rely on the officers’ evidence.

21.  In respect of Ground 2, the respondent submitted that whether the applicant had knowledge of the contents of Exh P4 was the critical issue in the trial, which was clearly and fairly dealt with in the judge’s directions in his summing‑up[6].

22.  As for Ground 4, the only evidence concerning the fingerprint came from the Admitted Facts, which did not specify on which part of Exh P4 the fingerprint was found.  The judge did not misinterpret the evidence and the fact that the applicant’s fingerprint was found on Exh P4 was conclusively proved by way of admission.

Discussion

23.  We can deal with Ground 4 very simply.  The limit of the admission of the fingerprint evidence was that three fingerprints were lifted from the outer covering of Exh P4, one of which belonged to the applicant[7]. Neither the terms of the admission nor the other evidence explained precisely where the fingerprint was located on the outer covering of Exh P4.  The judge was not permitted to go beyond the evidence adduced.  In any event, the judge reminded the jury that the applicant’s case was that the fingerprint came to be on the bag “because the police commanded him to pick it up”[8].

24.  In his oral submissions before us, the applicant further pointed out that his fingerprint was not found on the handle of Exh P4, which he argues tends to disprove the prosecution case that he was carrying the bag.  However, this matter was never explored in evidence, and there may, for all we know, be sensible reasons why a fingerprint cannot be lifted from the handle of a plastic bag being gripped by the carrier.  In our judgment, the absence of a fingerprint in that position proved nothing one way or the other. In any event, the point, such as it is, was before the jury, together with his evidence as to how he came to handle the bag.

25.  In respect of Ground 2, we do not accept that the prosecution had failed to prove the applicant’s possession and knowledge of the dangerous drug inside Exh P4.  Those issues, as we have seen from the judge’s summing‑up cited above, were squarely before the jury: indeed, they were the very issues on which the trial was fought.  In our view, the evidence of possession and the inference of knowledge were in this case overwhelming.

26.  Grounds 1 and 3 are linked and concern the HK$700 “missing cash” issue and its effect upon the prosecution case.  However, whether DPC 8235 was telling the truth, or whether he could not be relied upon because he was a “HK$700 thief ”[9], as the defence had suggested, was an issue firmly before the jury.  Having set out the respective arguments for the defence and prosecution on this issue, the judge made it clear that[10]:

“Nothing in this summing‑up should lead you to the conclusion that I suggest that you should ignore this topic. Quite the opposite. However, it may be an issue that in all the circumstances you are unable to completely resolve. Even if you thought that there was something odd or suspicious or wrong about what happened in this regard, it would be open to you to accept the testimony of the police officers. However, their credibility was attacked by Ms Wong on behalf of the accused on this topic and it would be open to you equally to say that this diminished their credibility. That is one of the reasons we have juries, to resolve not so much the issue of theft but the credibility of the officers concerned. It may diminish it to an extent you cannot rely on, it may not. That is a matter for you. And again, keep your eye on the main issue in the case. But, as I say, saying that does not make it disappear, it is not meant to.”

If we may say so, that put the matter correctly and fairly for the jury.  The judge left open to the jury that they could go so far as to find that they were unable to rely on the officers’ testimony because of this issue.  However, all matters of credibility and weight were for them.

27.  In the event, the jury unanimously convicted the applicant.  In our judgment, there was no merit in any of the applicant’s grounds of appeal against conviction.  For the above reasons, we refused leave to appeal and dismissed the appeal.

[1] AB p 9F – J.

[2] AB p 33D – J.

[3] AB p 37D – F.

[4] AB p 19H – R.

[5] AB pp 15O – 16D.

[6] AB pp 9F – J; 10H – T.

[7] Admitted Facts, AB p VII, paragraph 9.

[8] AB p 2N-O.

[9] AB p 36P-R.

[10] AB pp 16O-17C.