HKSAR v. LAM TSZ KIN, KENT AND ANOTHER

CACC 94/2022

[2024] HKCA 192

On appeal from [2022] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 94 OF 2022

(ON APPEAL FROM HCCC NO 133 OF 2020)

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J U D G M E N T

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1.  The 1^st applicant (who was D1 at trial) and the 2^nd applicant (who was D3 at trial) together with Torres Gonzalez Marco Valerio (who was D2 at trial) were jointly charged with one count of conspiracy to manufacture a dangerous drug, contrary to ss. 6(1)(a) and (2) and 39 of the Dangerous Drugs Ordinance (Cap 134) and ss. 159A and 159C of the Crimes Ordinance (Cap 200). It was alleged that between 5 and 6 March 2019 they had conspired to manufacture methamphetamine hydrochloride (commonly known as Ice). On 6 June 2022, following a trial before Toh J (the Judge) and a jury, they were convicted of the count they faced. D1 and D2 were convicted by a unanimous verdict of the jury, while D3 was convicted by a majority verdict of 5 to 2. D1 was sentenced to 29 years’ imprisonment and D2 and D3 were each sentenced to 28 years’ imprisonment.

2.  Following their convictions, the three defendants filed a notice of application for leave to appeal against conviction. D1 filed his application on 7 July 2022, which was slightly out of time. He also applied for legal aid but it was refused on 7 September 2022. He appears in person for his leave application. D2 filed his application on 20 July 2022, which was also out of time but he subsequently abandoned his application on 23 August 2022, which was marked dismissed. D3 filed her application on 30 June 2022. She also applied for legal aid, which was granted to her on 20 September 2022. D3 is represented by Mr Hanif Mughal and Ms Teresa Yu.

The prosecution case

3.  At 4:20 pm on 6 March 2019, D1 and his mother-in-law were intercepted in To Kwa Wan Road, Kowloon City, Kowloon. D1 had eleven mobile telephones, two bunch of keys and a key card of the iclub Ma Tau Wai Hotel (the hotel), 8 Ha Heung Road, Ma Tau Wai, Kowloon City, Kowloon, with him.[1]

4.  At about 4:43 pm on 6 March 2019, police officers entered Room B 810, Block B, I-Feng Mansions (I-Feng Mansions), To Kwa Wan Road, Kowloon City (the flat) which was rented by D1’s wife. The keys had been seized from D1. D2 and D3 were found on a sofa in the living room of the flat. DPC 4980 (PW4) found red bags and a bag with white powder inside on the coffee table in front of the sofa but they did not contain a dangerous drug. He saw D2 stretch out his legs under the coffee table[2], where he found a pot with brown liquid crystalline solid containing Ice.[3] One of the officers, DPC 6123 (PW3), said that when he entered the flat he smelt acid.[4]

5.  In the kitchen, there was an induction cooker that was heating, and six bottles were found in the kitchen sink. The forensic scientist, Leung Shui Mei (PW7), believed that the liquid solution in the pot on the induction cooker was being heated and the evaporation process which separated Ice from the solution was ongoing.[5] The six bottles, thermometers and metal spoon all had Ice on them. PW7 expressed the view that the manufacturing of Ice could have taken place at the scene.[6]

6.  The CCTV captured the following depictions:

(a) At 2:28 am on 5 March 2019, D1’s daughter brought a parcel into the lift of I-Feng Mansions;[7]

(b) At 7:30 pm on 5 March 2019, D2 and D1’s daughter were at the Whampoa branch of AEON.[8] D2 was there to buy pots[9];

(c) At 12:12 pm on 6 March 2019, D1 and D2 were at Kowloon Bay lKEA Megabox store.[10] They were there to buy the tools for the manufacturing of the dangerous drug[11];

(d) At 1:12 pm on 6 March 2019, D1 and D2 arrived at the lift lobby of I-Feng Mansions;[12]

(e) At 1:45 pm on 6 March 2019, D1 and his mother-in-law arrived at the lift lobby of I-Feng Mansions;[13]

(f) At 2:03 pm on 6 March 2019, D1 and D3 arrived at the lift lobby of I-Feng Mansions.[14]

7.  D1 is a Hong Kong resident. He departed Hong Kong via the Lo Wu control point on 24 February 2019 and returned to Hong Kong at 14:02 hours on 5 March 2019.[15] D2 is a national of Mexico. He entered Hong Kong on 21 February 2019.[16] D3 is a national of the Philippines, who has a clear record in Hong Kong and the Philippines. She entered Hong Kong on 5 March 2019.[17]

8.  D1 checked in at the hotel on 5 March 2019, having booked for 5-6 and 6-9 March 2019. D2 checked in at the hotel at 11:16 am on 3 March 2019, having booked for 25-27 February, 3-5 March and 5-7 March 2019. D3 checked in at 12:37 pm on 5 March 2019, having booked for 5-6 and 6-7 March 2019.[18]

The defence case

D1

9.  D1 gave evidence that his brother in the Philippines told him that his Mexican friend, D2, was coming to Hong Kong to buy miscellaneous items and asked him to book a hotel and pick up D2 at the airport. He was in the Mainland, so he asked his daughter to pick up D2 at the airport on 21 February 2019.

10.  At around 7:00 pm on 4 March 2019, his brother on WeChat told him to collect a parcel for D2 because the delivery man could not reach D2. He was still in the Mainland, so he asked his daughter to collect it.[19]

11.  At about 10:00 am on 5 March 2019, his brother called him and said that D2 wanted to borrow his home to cook dangerous drugs. He was threatened by his brother that harm would come to him and his family if he refused.[20] He then met D2 in the hotel room on the same day. D2 asked D1 if he knew of any glass pots for sale, and he told his daughter to take D2 to AEON because he was not feeling well.[21] On 6 March 2019, D2 asked him to go to IKEA together to buy pots for manufacturing of Ice.[22]

12.  D3 was a friend of D1’s brother, who came to Hong Kong to buy cosmetics and gold ornaments.[23] On 6 March 2019, D1 took D3 to a gold shop. His brother called and told him that D2 had almost finished, and he had to go up to the flat to help move things away. He brought D3 to the flat with him because he was very scared and “her presence would give me courage”.[24] He told D3 that D2 also wanted to go shopping and suggested waiting for D2. He then left to have lunch and did some Bitcoin trading. At about 4:00 pm, his brother called, saying that D2 would finish soon and would pack up in 20 minutes. He left the hotel and was arrested.[25]

D3

13.  D3 gave evidence in her defence. She testified that her job in the Philippines was to cook lunchboxes and deliver them to·a call centre. D1’s brother was the husband of her friend, Angelica.[26] She planned to shop with Angelica in Hong Kong for school supplies, sales stuff, and birthday gifts. Shortly before their trip, D1’s brother called her, saying that Angelica could not come and D1 would accompany her to go shopping.[27] When she was on the bus, D1 sent her the hotel information and she took a taxi to the hotel. After checking in at the hotel, she went downstairs to have a smoke and met D1. D1 went to her room, told her that he could not take her shopping that day and left.[28] The next day, she called D1 at about 12:45 pm, asking if they could go shopping. D1 took her to a jewellery shop nearby. At the shop, D1 suggested they go to the flat as he needed to make some important telephone call.[29]

14.  She saw D2 sitting on a sofa and smelled some scent.[30] She was on her mobile telephone because her driver could not pick up her son at school. She stayed in the flat for two and a half hours. She did not notice if the items were on the table, she did not know Ice was cooking in the flat,[31] and she did not know if D2 ever got up from the sofa because she was concentrating on her telephone[32].

Leave to appeal against conviction

15.  In their leave applications, D1 advances one ground of appeal, while D3 advances four grounds of appeal.

D1’s appeal

16.  D1 complains that the defence requested the Judge to place an alternative verdict under s.37 of the Dangerous Drugs Ordinance (Cap 134)[33] before the jury, but she refused. It is submitted this was contrary to HKSAR v Li Jin[34].

17.  In Li Jin, the appellant admitted knowledge but denied possession of the dangerous drugs found in a bedroom wardrobe of her rented matrimonial home, arguing that the drugs belonged to her husband and that she had not done anything with the drugs. The Court of Appeal, citing the Court of Final Appeal judgment in HKSAR v Ho Hoi Shing [35], commented that in the circumstances of that case, an s.37 offence should have been left for the consideration of the jury as an alternative.

18.  In a more recent case of HKSAR v Chau Yui Ming [36], the Court of Final Appeal held that where there was an obvious alternative verdict that was supported by the evidence, it would be incumbent on a judge to direct a jury as to the alternative options open to it. The Court noted that the way the defence case was run on the facts was relevant in determining whether there was sufficient evidence to support an obvious alternative verdict, and if a factual alternative did not arise in the way the defence case was run, this would in most cases be a decisive factor.

19.  In the present case, evidence showed that not only did D1 allow the flat to be used, but he also arranged his daughter to collect the parcel containing a dangerous drug and take D2 to AEON to buy pots.[37] D1 also went to IKEA with D2 to buy pots for manufacturing of Ice[38]. It was D1’s evidence that when he sent his daughter to AEON with D2, and when he went to IKEA with D2 to buy pots, he knew that D2 was going to manufacture a dangerous drug.

20.  D1’s involvement in the manufacturing of the Ice was extensive.[39] He claimed he was acting under duress. In his case, he was threatened to lend the flat to D2 to manufacture the Ice and had nothing to do with the conspiracy. The Judge rightly directed the jury that if they found what D1 said was true or might be true, they had to acquit D1.[40] If the jury were not sure that D1 was a party to the conspiracy, they must find him not guilty.[41]

21.  It is submitted by the respondent that the circumstantial evidence and the defence case did not make a s.37 offence an obvious alternative, and the Judge was therefore not obliged to direct the jury on this offence. It would have confused the jury if they had been directed on the alternative verdict of s.37 because it was never the defence case that D1 did no more than willingly permitted D2 to manufacture the Ice in the flat.

22.  I agree with the respondent’s submission. I do not find this ground of appeal to be reasonably arguable.

D3’s appeal

Grounds 1, 2 and 4

23.  Grounds 1, 2 and 4 allege that the mere presence of D3 in the flat in the circumstances of this case was insufficient to draw an irresistible inference that D3 was a party to the conspiracy, in particular, no role was attributed to D3 in the conspiracy and there was no direct evidence on an agreement.

24.  Mr Mughal articulates the grounds of appeal as follows. Ground 1, the Judge erred in not directing the jury properly or at all that the presence of D3 at the flat, in the circumstances, was insufficient to infer that her presence was part and parcel of a conspiracy to manufacture dangerous drugs. Ground 2, the Judge erred in not directing or guiding the jury properly or at all that the mere presence of D3 in the flat would not be enough to support the prosecution case against her, and the prosecution had to show that she joined or was part of an agreement to manufacture dangerous drugs. Ground 4, in the absence of any direct evidence showing an agreement, role and knowledge of the dangerous drugs on the part of D3, the circumstantial evidence was insufficient to draw an irresistible inference of agreement to manufacture dangerous drugs, role and/or knowledge of dangerous drugs causing a lurking doubt as to the safety of her conviction rendering it unsafe and unsatisfactory in all the circumstances.

25.  Defence counsel on behalf of D3 made a submission of no case to answer but it was rejected by the Judge. It is submitted by the respondent that the prosecution’s evidence was sufficient to lead to the only reasonable and irresistible inference that D3 was a party to the conspiracy.

26.  It is argued that a conspiratorial agreement is usually established by inference from proven primary circumstances. The absence of direct evidence does not mean that a defendant had nothing to do with the incident: HKSAR v Kwun Sum Yeung [42]. As the Judge directed, if the jury were sure that there was a conspiracy and a particular defendant was a party to it, they must convict. It did not matter what role a particular person played if the jury found that he or she was part of the conspiracy.[43]

27.  There was undisputed evidence showing that the flat was used to manufacture dangerous drugs. When the police raided the flat, the manufacturing was underway, and there was presence of the smell of acid. The Ice and tools for manufacturing a dangerous drug were placed openly in the kitchen. In the living room, on the coffee table in front of the sofa where D3 was found, were some red bags and a bag with white powder (which was not a dangerous drug). Under the coffee table was the pot with a brown liquid crystalline solid containing Ice. D3 had been in the flat for more than two and a half hours when the police arrived.

28.  It is further pointed out by the respondent that D3 was a visitor to Hong Kong, and she did not live in the flat. D3 was taken to the flat by D1, who admitted he knew that drug manufacturing was taking place there.[44] The respondent asks the following rhetorical questions: Why would D3 be brought to a crime scene by D1? Why would D1 find it safe or proper to leave D3 there with D2? Why would D2 manufacture the drug in the plain sight of D3? Why would D3 put up with D2’s crime in silence and not take appropriate steps to remove herself from what was taking place? However, these questions do not address the state of the evidence against D3 that she was party to a conspiracy to manufacture the Ice. I will discuss the evidence against D3 in further detail later in the judgment.

29.  D3 gave evidence that D1 asked her to wait in the flat and that they would later go shopping. She was on her telephone and did not notice those items on the table and she did not know if D2, who was found sitting next to her, had got up from the sofa.

30.  The extent of the prosecution case against D3 was that she was present “to observe” the manufacturing of Ice.[45] It is noted by the respondent that the Judge repeatedly directed the jury that if they found what D3 said was true or might be true, she was entitled to be acquitted.[46] If they entirely rejected the account given by D3, the prosecution still had to prove the case beyond reasonable doubt.[47] It is also submitted that a special direction was not required in the circumstances of the case against D3: Nguyen Anh Nga v HKSAR[48].

Ground 3

31.  Ground 3 alleges that the Judge contrasted D3’s evidence that she was on the bus from the airport when D1 contacted her while D1 stated that he ran into D3 accidentally in the hotel downstairs and that this was tantamount to discrediting D3.[49]

32.  The Judge had directed the jury to use common sense and experience when considering each defendant’s evidence, e.g. did it make sense and whether there was other evidence that might help them to decide whether that part of his evidence could be accepted or not.[50] There is nothing improper about highlighting the discrepancies in the evidence of the defendants in the summing-up for the jury’s consideration.

33.  It is argued by the respondent that the Judge also gave D3 a good character direction for both credibility and propensity.[51] The submission that the Judge’s remarks effectively suggested D3 had lied was without basis.

Discussion

34.  I do not find Ground 3 to be reasonably arguable. It was open to the Judge to highlight the differences in evidence between D1 and D3, although I consider the subject was not a material matter. In the circumstances, the jury probably would have viewed it in the same light.

35.  It is appropriate to briefly highlight the issues at trial and the state of the evidence as it relates to D3. D1’s wife had rented the flat. It was a small flat and the photographs revealed that it was cluttered and untidy. There was a sofa facing a TV with a coffee table in front of it. D3 entered the flat sometime after 2:00 pm on 6 March 2019 was found sitting on the sofa at the time of the police raid at about 4:43 pm that day. She had been in the flat for about two and a half hours. She had arrived from the Philippines the day before the raid. When the police entered the flat, there was the smell of acid and the making of Ice was taking place in the kitchen. There were some bags on the coffee table but they did not contain Ice, and a pot under the coffee table that D2 tried to kick away, which contained Ice. From the photograph of the pot, it was not apparent that it contained Ice as it consisted of a number of discarded items.

36.  D1 had been arrested by the police on the street before they entered the flat. He had keys to the flat which the police used to gain entry to it. When they entered the flat, they saw D2 and D3 sitting on the sofa. D1 testified that he knew drugs were being manufactured in the flat because his brother, who was in the Philippines, had insisted that he lend the flat to D2 in order for him to manufacture the dangerous drugs. He said he did this under duress because his brother threatened him that if he did not do so, something may happen to him and his family. He said he had no alternative but to agree and went with D2 to IKEA because D2 wanted to buy pots for manufacturing the Ice. Afterwards, he went to the flat with D2 as D2 wanted to look at the parcel which had been delivered.

37.  D2 testified that he came to Hong Kong to collect a debt from D1 that had been assigned to him by someone else. He did not know that the manufacturing of dangerous drugs was going on inside the flat. He said he had been set up by D1, who had lured him to AEON and IKEA. He said he paid for the items that IKEA because D1 knew that CCTV cameras were present in the store. He claimed he was only in the flat because D1 promised him that the money was coming and therefore he decided to wait there. He accepted that all the pots in the kitchen were boiling and took a video of it. He said he wanted to send it to D1 and to his wife. He claimed he did not send it so he put it into the trash on his mobile telephone.

38.  As already stated D3’s case was that she came to Hong Kong for shopping. She was to accompany her friend, Angelica, who was married to D1’s brother, but she pulled out at the last minute. She said that D1 arranged for her accommodation at the hotel and that she did not know that manufacturing of dangerous drugs was taking place inside the flat. She had been taken there by D1, who was going to take her shopping. He was busy, and she waited for him to return to take her shopping. While she was in the flat, she was playing with her telephone and chatting to D2.

39.  There is no doubt that there was compelling evidence implicating D1 and D2 in preparing and manufacturing the Ice in the flat. They were observed together purchasing equipment for the manufacturing of the Ice and entering and leaving the flat at relevant times. This was not the case with D3. She had just arrived in Hong Kong, and the extent of the evidence against her was that she was present in the flat when the police raided it. The difference in the evidence between D1 and D2 on the one hand and D3 on the other had not been highlighted by the Judge in her summing up to the jury. There was a serious question as to whether the primary facts relevant to D3 were sufficient to draw the only reasonable inference that she was a party to the conspiratorial enterprise of manufacturing Ice in the flat. The prosecution presented its case against the defendants by emphasising that there was a joint enterprise between them, and the evidence against each of them implicated them all. This was reflected in the Judge’s summing-up to the jury when she addressed the prosecution case and the evidence against the defendants, including D3.

“Now, prosecution may prove the agreement in a number of ways. One, as I said, is by asking you to make an inference of its existence from the evidence tended before you in this courtroom. In this case, the prosecution has brought before you the CCTV in that the prosecution says it shows the 2^nd defendant going to AEON to buy pots. Then it also shows the 1^st and 2^nd defendant going to IKEA to buy the tools for the manufacturing of the dangerous drugs. Therefore, in deciding whether there was a criminal conspiracy in this case, and whether each defendant was a party to it, look at all the evidence during the relevant period, including the behaviour of that particular defendant and the other alleged conspirators. If having done that, you are sure there was a conspiracy and that a defendant was party to it, you must find him guilty. If you are not sure, you find him not guilty.

Now, when a criminal conspiracy is formed, as I have said, one or more conspirators may be more deeply involved and has a greater knowledge of the overall plan. A conspiracy may also join a conspiracy that has been formed and drop out before it is carried out. Provided you are sure that a particular defendant did at some stage agree with the others that the crime in question would be committed and at the time intended that it should be carried out and it does not matter precisely where his or her involvement appears on the scale of seriousness or precisely when he or she became involved.

So you have the 3^rd defendant coming to Hong Kong that she was brought to the flat on 6 March. She had not been involved in going to AEON or IKEA, however, the prosecution alleges that she was part of the conspiracy and that she willingly and, in fact, went to the flat and was in the flat for two and a half hours. So the prosecution alleges that she is part of the conspiracy and when the drug manufacturing was going on. So each defendant is alleged to have played a different part. As far as the 1^st defendant is concerned, the prosecution says well, it was his flat, he let the manufacturing going on in there. And not only did he allow the flat to be used, he actually prepared for the manufacturing by going with the 2^nd defendant to buy the pots in IKEA and also arrange for his daughter to take the 2^nd defendant to AEON.

So the prosecution says that well, the only reasonable inference to draw from all that was that he was part of the conspiracy to manufacture and the prosecution says the 2^nd defendant came here not to collect a debt, but came here to manufacture dangerous drugs in the flat of the 1^st defendant. That is why he actually went to AEON and the CCTV in AEON shows that he was not just standing around, he was actually communicating with the sales staff at the place where they sell pots and pans. You can see him indicating with his hands a particular dimension that he showed to the sales staff. So the prosecution says that taking into account all the evidence the only reasonable inference to draw was that he was part of the conspiracy to manufacture.

So this is what is alleged against each of the defendants. The 1^st defendant says he was threatened by his brother in the Philippines to lend his flat to the 2^nd defendant under duress. If you find that all the elements of conspiracy to manufacture have been proved against the 1^st defendant and that he is guilty of the conspiracy to manufacture dangerous drugs, then you have to consider the issue of duress because the 1^st defendant said yes, he lent the flat and he knew manufacturing was going on, that he was threatened by his brother in so many words that harm would come to him and his family if he did not comply. Now, duress of this kind may be a defence to a criminal charge. It is for the prosecution to prove that the duress does not apply here. It is not the defence to prove that it does.”[52].

40.  The above passage begs the question what was the evidence against D3. What were the primary facts from which to draw the only reasonable inference that she was a party to the conspiratorial agreement to manufacture Ice in the flat. The Judge went on to discuss the defence cases of D1 and D2 and summarised the evidence of each defendant but did not identify the primary facts on which the prosecution submitted they could draw an inference of guilt against D3. The prosecution case mainly focused on the incriminating evidence against D1 and D2.

41.  It is for the foregoing reasons that I find Ground 1, 2 and 4 to be reasonably arguable.

Conclusion

42.  I do not find D1’s ground of appeal to be reasonably arguable. There was no basis for the Judge to put an alternative verdict for an offence under s. 37 when his defence was that he was manufacturing the Ice but under duress. The jury, by its verdict, clearly rejected D1’s defence.

43.  D1 is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

44.  I find D3’s Grounds 1, 2 and 4 to be reasonably arguable and grant her leave to appeal against conviction on those grounds. I do not find Ground 3 to be reasonably arguable, and leave is refused on that ground.

45.  During submissions from the parties, the issue arose concerning D3’s sentence. She was sentenced to 28 years’ imprisonment and treated the same in terms of involvement in culpability as D1 and D2, notwithstanding that the Judge said in her sentencing remarks she did not know what role D3 played other than being present in the room at the time of the police raid. She imposed a similar sentence to that of D2 because she had no reason to find that her role was less than his.

46.  D3 had not sought leave to appeal her sentence. However, I consider that in the interests of justice, leave should be granted to D3 to appeal against her sentence, notwithstanding the late stage in doing so and without an application having been made by her. D3 arrived in Hong Kong the day before she was found in the flat where Ice was being manufactured. She was sitting on the sofa, and the extent of the evidence against her was that she was present at the time the police raided the flat. The buying of equipment and paraphernalia for the manufacture of the Ice was done by D1 and D2. Both D1 and D2 gave evidence. D1 accepted that he was involved in manufacturing Ice but claimed he was acting under duress. D2, on the other hand, claimed he came to Hong Kong to collect a debt but had been set up by D1 to accompany him in buying the items for the manufacture of Ice. Both D1 and D2 testified that D3 was merely present at the relevant time and not involved in manufacturing the Ice. Once it is established that a defendant was party to a joint enterprise, a sentencing court would normally adopt a starting point that reflected the overall criminality involved. However, in exceptional circumstances, the lesser role or involvement of a conspirator may warrant that he or she be distinguished from major players in the conspiracy. With this in mind, not granting leave to D3, even at this very late stage, would be shutting out a substantial and plainly arguable ground of appeal against sentence. I grant D3 leave to appeal against sentence out of time and a Legal Aid Certificate to D3 to appeal her sentence.

47.  Having refused D3 leave to appeal on Ground 3, I remind her of the right to renew her leave application but also informed her of the Court of Appeal’s power to order loss of time for renewal of an unmeritorious ground of appeal.