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CACC 22/2020
[2021] HKCA 386
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 22 OF 2020
(ON APPEAL FROM HCCC NO 188 OF 2019)
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HKSAR |
Respondent |
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Chu Ka Ming (朱嘉銘) |
Applicant |
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Before: Hon Macrae VP in Court
Date of Hearing: 18 March 2021
Date of Judgment: 18 March 2021
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J U D G M E N T
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1. The applicant originally faced two counts of trafficking in a dangerous drug (1st and 2nd counts)[1], jointly with one Tsang Wai Sheung, Bonnie. On 16 January 2020, the applicant was convicted after trial before Barnes J (the judge) and a jury of the 1st count[2], having earlier been acquitted of the 2nd count on the basis that there was no case to answer. The drug concerned in the 1st count was 47.9 grammes of a solid containing 45.1 grammes of cocaine. The applicant was sentenced to 7 years and 10 months’ imprisonment.
2. Tsang pleaded guilty in the magistrate’s court to one joint charge of trafficking in dangerous drugs with the applicant (in respect of the drugs which are the subject matter of the two counts faced by the applicant); and one charge of attempting to traffic in a dangerous drug (in respect of substances found on her person, which did not concern the applicant)[3]. She was sentenced to a total of 7 years’ imprisonment.
3. The applicant now applies for leave to appeal against conviction, having filed a Form XI Notice on 7 February 2020.
The prosecution case
4. On 3 May 2018 at about 8.45 pm, police officers were observing a private car parked at Ta Chuen Ping Street, Kwai Chung, in the New Territories. At the material time, the applicant was in the driver's seat and Tsang was in the front passenger seat.
5. At about 9 pm, the officers saw the applicant alight from the vehicle, carrying a red paper box. They approached him and revealed their identities. The applicant discarded the red paper box and fled. However, he was stopped and arrested by the officers. Upon search, two bags of cocaine (the subject-matter of the 1st count) were found inside the red paper box he had been holding. The car was also searched and a black plastic bag containing four bags of cocaine (the subject-matter of the 2nd count) were found inside[4].
6. Under caution upon arrest, the applicant said he had nothing to say. In a later video recorded interview, he told the police that he was delivering the red paper box at Tsang’s request, but he did not know that there were dangerous drugs inside.
7. Tsang was also arrested. She testified for the prosecution at the applicant’s trial. Her evidence was that she agreed with a man to collect and deliver dangerous drugs for a reward of $1,000. She was disqualified from driving and therefore asked the applicant to drive her. She had known the applicant for several days, having met him in a gaming centre. Using a car registered in the name of a company owned by her husband, the applicant first drove her to Tin Shui Wai to meet the man for whom she was to deliver the dangerous drugs. This man gave her a black plastic bag, inside of which were six bags of cocaine. She then directed the applicant to drive to Ta Chuen Ping Street. She put two bags of cocaine from the black plastic bag into a red paper box and gave the red paper box to the applicant. After they had arrived at Ta Chuen Ping Street, Tsang told the applicant to take the red paper box out of the car for someone to collect. The applicant was arrested after alighting from the car. She testified that she was not sure whether or not the applicant knew the box contained two bags of dangerous drugs. She could not recall if she had offered the applicant any reward for driving her to Tin Shui Wai to pick up the black plastic bag and then on to Ta Chuen Ping Street.
8. At the end of the prosecution case, the judge ruled that there was no case to answer on the 2nd count in respect of the four bags of cocaine remaining in the black plastic bag. The jury returned a not guilty verdict on this count in accordance with the judge’s direction.
The defence case
9. The applicant elected to give evidence. He testified that he had met Tsang in a gaming centre, and had known her for about a week before the offence. On the day of his arrest, he agreed to Tsang’s request to drive her around. At about 6 pm, he drove her to Tin Shui Wai. A man carrying a black plastic bag then boarded the vehicle. There was a discussion between Tsang and the man, but the applicant did not pay attention to the conversation. When the man left the car, he was not carrying the black plastic bag.
10. At Tsang’s request, the applicant then drove to Ta Chuen Ping Street. As they arrived at Ta Chuen Ping Street, Tsang was talking on her mobile telephone. Again, the applicant did not pay attention to her conversation. She then gave the applicant a red paper box to take to the opposite side of the road for someone to collect. The applicant did not know and did not suspect that there were dangerous drugs inside the box[5]. As he alighted, he saw several men rushing towards him. He felt scared and ran, dropping the red paper box accidentally, and not deliberately. When he was stopped, he realised that the men were police officers and he thereafter co-operated with them. Tsang had not offered him any money for driving her around.
Summing-up
11. The judge identified at the outset the key issue for the jury, which was the applicant’s knowledge[6]:
“So the whole case you can see that rides on whether you can be sure that the defendant knew full well there were drugs inside this red box.” (Emphasis supplied)
This was a repeated theme throughout her summing-up[7], culminating in her final direction before sending the jury out[8]:
“The question is: Was the defendant part of this plan? Did the defendant know what he was asked to do was to deliver dangerous drugs as opposed to just a red box without him knowing what was inside? So again, it all comes back to knowledge. Can you be sure that the defendant knew at the time when he took the red box to make delivery, he knew there was drugs inside the box.”
12. The judge also made clear that there was no direct evidence as to the applicant’s knowledge, and that the method of determining his knowledge was by way of inference in accordance with her directions[9]. She gave comprehensive directions on the drawing of inferences[10], and no complaint is made about those directions. In particular, the judge directed that unless the jury were able to draw as the only inference from the evidence that the applicant knew there were drugs inside the red box, then they must acquit[11].
Grounds of appeal
13. Mr H Y Wong, on behalf of the applicant, has advanced a single ground of appeal, to the effect that, since the circumstances of Tsang obtaining the black plastic bag and then giving the red paper box to the applicant were suspicious, the judge failed to direct the jury that suspicion or failure to inspect the contents of the red paper box did not amount to knowledge of its contents.
14. Mr Wong referred to the Notes to Specimen Direction 61 entitled ‘Shut eye’, or constructive, knowledge, which reads:
“Where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that, by itself, failure to take an opportunity to inspect is to be, or may be, equated with knowledge of the contents.”
15. Mr Wong also relied on R v Law Wai Choi (Unrep., CACC 279/1996), where it was held that an invitation to the jury to treat a deliberate disregard of suspicious circumstances as an alternative to direct evidence of knowledge, was a misdirection.
16. Mr Wong complained that the judge never directed the jury as to what amounted to knowledge, in particular that suspicion did not suffice. Although the jury were told by defence counsel that “suspicion is not enough” in his closing speech[12], it was submitted that this was not sufficient and the judge herself needed to give such a direction in terms. He cited the Privy Council decision of Lawrence v The King [1933] AC 699, at 707 in support; although in Lawrence, the trial judge “did not give the jury any direction at all as to the onus of proof, or that the accused was entitled to the benefit of a reasonable doubt”, at any stage of the summing‑up[13].
17. Given the prosecution case that there was a joint plan between Tsang and the applicant to traffic in the dangerous drugs, and the suspicious circumstances under which the applicant received the red paper box, Mr Wong submitted that the jury could have fallen into an impermissible line of reasoning by treating the applicant’s failure to inspect the contents of the red paper box, when he had the opportunity to do so, as actual knowledge of the contents. Therefore, the judge should have specifically directed the jury that a failure to take the opportunity to inspect was not to be equated with knowledge.
Respondent’s submissions
18. Mr Derek Wong, for the respondent, accepted that the judge did not give a specific direction that suspicion was not enough to establish the mens rea of the offence. However, the judge had repeatedly reminded the jury that they could only convict if they were sure the applicant knew that the red paper box contained dangerous drugs.
19. The mere fact that the applicant had testified he never suspected that there were drugs inside the red box[14] did not warrant a direction on constructive knowledge. The applicant was not saying he suspected the red paper box may have contained dangerous drugs: on the contrary, he was denying ever suspecting that it contained dangerous drugs. The issue of the applicant's suspicion did not arise and there was no risk of the jury replacing the requirement of knowledge with mere suspicion. Mr Wong relied in this regard on this Court’s decision in HKSAR v Lam King Yin (Unrep., CACC 162/2014).
20. Mr Wong further referred to HKSAR v Lee Wing Yan [2020] HKCA 754, where the Court of Appeal reminded judges that, in dangerous drugs cases, constructive knowledge is rarely relevant and it is a topic fraught with potential pitfalls not least in explaining subtle concepts and nuanced ideas to the jury and should not, therefore, be embarked upon lightly. Such a direction here would only have confused the jury unnecessarily, where the issue of knowledge was clear-cut.
Consideration
21. It was never the applicant’s case that he suspected that there might be dangerous drugs inside the red box but was not sure; or having initially suspected that the box might contain drugs, he had discarded that possibility. His case was that he never knew and had never even suspected there might be dangerous drugs in the box. Nor was it the prosecution case that the applicant suspected but deliberately shut out the obvious possibility that there were dangerous drugs in the red box. Nor was it ever put to him that he had the means and opportunity to check the contents of the box but deliberately refrained from doing so. The case put to the applicant in cross-examination was that he “well knew” that what he had been holding in the red box before he was intercepted were packets of cocaine[15]. “Know” and “knowledge” are ordinary English words.
22. It is true that the Notes to Specimen Direction 61 suggest that “where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved”. However, this is in the context of circumstances where there may be an issue of constructive knowledge. Here there was none. The prosecution case was that the applicant “well knew” what was in the box at the time he was intercepted: the defence case was that the applicant had no idea. As the authorities make clear, the issue of constructive knowledge is not to be introduced except in those rare cases where the circumstances clearly call for it. Here, it was never raised at all by anyone.
23. In Lam King Yin, the Court said, at [43]-[45]:
“43. From the cases cited by the respondent the law is quite clear. A direction to the jury on constructive knowledge should not be given as a matter of course, but only where the rare circumstances of a particular case require that it be done. Those circumstances will generally be where it is clear from the evidence and the way the defence contested the case that the defendant harboured suspicions about the circumstances in which he found himself but sought to avoid the consequence of knowing too much by not asking any questions for fear of the awkward answers he might get. In this situation the commonsense response of the law is that the defendant well knows what is going on and is simply avoiding obtaining confirmation. An attitude of “don’t tell me what I can’t afford to know” will not enable him to escape criminal liability for his actions.
44. But that situation is not one that arises very often in drug trafficking cases and so it is only rarely that such a direction is warranted. In HKSAR v Yang Yulan [2013] 4 HKLRD 170 Barnes J, giving the judgment of the Court of Appeal, said at page 176 paragraph 25:
“Since ‘constructive knowledge’ is rarely involved in dangerous drugs cases, unless the facts clearly showed that the defendant had deliberately turned a blind eye to suspicious circumstances, it is not appropriate for judges to give general directions to the jury on ‘constructive knowledge’.”
45. The standard situation, such as the present case, where the prosecutor invites the jury to disbelieve the defendant and infer actual knowledge from the prosecution evidence, is not a case calling for such a direction.”
It will be noted that the trial judge in the present application was the same judge who gave the judgment of the Court of Appeal in Yang Yulan and would have been familiar with her own decision.
24. Moreover, the judge repeatedly stressed that the issue was whether the applicant could be proved to have known that the box contained dangerous drugs. As she put it to the jury at the outset of her summing-up, the whole case depended on “whether you can be sure that the defendant knew full well there were drugs inside this red box”. Reading the summing-up as a whole, and, in particular, the parts I have identified in paragraph 11[16] supra, the issue was clearly placed before the jury as one of full knowledge and nothing less.
25. I do not regard it as reasonably arguable that the jury might have adopted an impermissible line of reasoning, when one was never suggested to them by anybody, and when it was never raised by the evidence. This ground of appeal is not reasonably arguable and the application for leave to appeal against conviction is refused.
26. The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.
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(Andrew Macrae) |
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Vice President |
Mr Derek Wong SPP, of the Department of Justice, for the Respondent
Mr H Y Wong, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the Applicant
[1] Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
[2] By a majority verdict of 5 to 2.
[3] HCCC 189/2019.
[4] The drug in question in the 2nd count was 95.8 grammes of a solid containing 89.5 grammes of cocaine.
[5] Appeal Bundle(“AB”), p 81H.
[6] AB, p 16L-S.
[7] AB, p 21B-C; p 23A-B, K-M; p 25G-I; p 29S-T.
[8] AB, pp 40S-41B.
[9] AB, p 24A-E.
[10] AB, pp 34S-37I.
[11] AB, p 36I-K.
[12] AB, p 63T.
[13] Lawrence, at 706.
[14] AB, p 81H-I.
[15] AB, p 86H-J.
[16] See footnote 7.
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